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THE AMERICAN 



THEORY OF OOYERNMENT 



CONSIDERED 



WITH REFERENCE TO THE PRESENT CRISIS. 



PETER H. BURNETT. 



i/ 




nil. 



1- 



" I had rather be right than be President."— Hexrt Clat. 






NEW YORK: 

D. APPLEXON & CO., 443 & 445 BROADWAY. 

LOJTDON: 16 LITTLE BRITAIN. 

1861. 



f? ^ ^'^^^ 




i^ ^ 



^ 



^ 






Entered, according to Act of Congress, in the year 1661, by 

D. APPLETON & CO., 

in the Clerk's OlBce of the District Court of the United States for the Southern District 

of New York. 



Ij) ^^ 



P R'E F A C E . 



" But it is a novelty in the history of society," says 
De Tocqueville, " to see a great people turn a calm and 
scrutinizing eye upon itself, when apprised by the Legis- 
lature that the wheels of Government had stopped ; to 
see it carefully examine the extent of the evil, and 
patiently wait two whole years until a remedy was dis- 
covered, which it voluntarily adopted without having 
wrung a tear or a drop of blood from mankind." 

These generous remarks were made by the learned 
and profound Frenchman, in reference to the noble for- 
bearance exhibited by the American people in the j)eace- 
ful formation of their Constitution. But we are now 
exhibiting to the world a spectacle of another kind : not, 
indeed, a novelty, but only one of those crises not very 
uncommon in the history of nations. We are in the 
midst of a mighty revolution ; and are now passing 
through one of the ordinary, though painful stages in the 
progress of a people from youth to mature age. And it 
would seem that this bloody revolution must and will 
run its due course. 

Most haj^py would it have been for us, and for others, 
could we have avoided the terrible struggle ; and have 



IV PKEFACE. 



exliibited, a second time, the beautiful novelty of a grea 
peojDle voluntarily agreeing as to tlieir condition anc 
wants, and calmly adopting a remedy for existing evils, 
" -without having wrung a tear or a drop of blood from 
mankind." But regrets for the past are now wholly un- 
availing, and we must confront the stern facts as they are, 
and think and act in the " living present," but for the 
great future. "We should, at as early a day as practica- 
ble, " turn a calm and scrutinizing eye " u]3on ourselves, 
" carefully examine the extent of the evils," ascertain the 
proper remedy, and willingly and promptly adopt it. 

Having bestowed some attention and thought uj^on 
this subject, the writer submits the following views to 
the j)nblic, in the hope that they may be, to some extent, 
useful in their ultimate results. Though plainly and 
boldly stated, they are given with a kind and generous 
intent ; and are addressed to all who love their country, 
and seek to j)romote its true and permanent interests. 



CONTENTS. 



CHAPTER I. 

VALUE OF THE UNION. 

PAGE 

^ 1. Devotion to tlie Union should be based on sound reasoning 7 

2. The object of Government, and the right to institute it 8 

3. Tlie benefits of the Union in the past, a reasonable basis for esti- 

mating its benefits in the future 9 

4. Difficulty of designating the dividing hne between the sections. . . . 10 

5. Frequent wars would be the consequence of permanent dissolution. 10 
G. These wars would be carried on by regular soldiers 13 

7. The evils of War 13 

8. Eftects of dissolution upon National Credit 17 

9. Effects of dissolution upon the investment of capital 18 

10. Dissolution fatal to supremacy at sea 19 

11. Despotism the ultimate result of dissolution 19 

12. The same subject continued 21 

13. A despotism inimical to a free press 25 

14. Dissolution exposes us to foreign aggression 25 



CHAPTER II. 

CAUSES OF THE CEISIS. 

1. Causes of the Crisis stated 27 

2. Circumstances under which the Constitution was framed and ratified 29 

3. The same subject further considered SI 

4. The radical vice of the confederation practically continued in the 

Constitution 34 

5. The same subject continued 37 

6. The same subject further considered 41 



VI CONTENTS. 

PAGE 

7. Other eflfects of divided sovereignty 43 

8. Character of the reserved powers 44 

9. The same subject continued 46 

10. The same subject further considered 48 

11. The general corruption of our public men 51 

12. The same subject continued 53 

13. The same subject further considered 56 

14. The same subject further considered 59 

15. An elective Judiciary , 62 



CHAPTER ni. 

THE ULTIMATE REMEDY. 

§ 1. The ultimate remedy stated 68 

2. There should be no State Sovereignty 71 

3. The Executive Power 73 

4. The Legislative Power 77 

5. The Judiciary 80 

6. Salaries 81 

7. Slavery : . . . 82 

8. Conclusion 82 



Appendix » • • « 85 



THE 



AMERICAN THEOPiY OF GOYEMMENT. 



CHAPTEE I. 



VALTJE OF TUE UNION. 



" It is cf infinite moment that you should proiJoHy estimate the immense value of 
your national Union to your collective and individual happiness." — "Washington. 



§ 1. Devotion to the Union sJiould be hascd on sound 
reasoning. 

The acute Callioun, in that memorable speech, (the last one 
of any importance delivered by him in the Senate,) in speaking 
of the former nnion between the parent conntry and her colo- 
nies, very justly said: 

" "Washington was born and grew np to manhood under that 
union. He acquired his early distinction in its service, and 
there is every reason to believe that he was devotedly attached 
to it. But his devotion was a rational one. He was attached 
to it not as an end, but as a means to an end." 

It may with equal truth be said, that the devotion of " the 
illustrious Southerner, whose mortal remains repose on the 
banks of the Potomac," to the present Union, " was a rational 
one ; " for, imless the Union be intrinsically valuable " as a 
means to an end," it is unworthy of our love and respect, and 
should not and cannot be permanently sustained. And Mr. 
Calhoun was equally right, when he said in the same speech : 

" It cannot, then, be saved by eulogies on the Union, how- 
ever splendid and numerous. The cry of ' Union, Union — the 
glorious Union ! ' can no more prevent disunion, than the cry 



8 VALUE OF THE UNION. 

of ' liealtli, licaltli — glorious liealtli ! ' on tlic part of tlie pliy- 
siciaii, can save a patient lying dangerously ill." 

Tlio time lias been when no estimate of the value of the 
Union need to have been made. All was then internal peace 
and fraternal love. But that time has passed away ; and we 
are now in a great crisis — a severe trial — a conclusive test, and 
Qiiust meet it as best we may. If we should prove unequal to 
the task, and be imable to rise with the mighty occasion, the 
world will have ample reason to know that we are but a degen- 
erate people, and false claimants of merits not our own. We 
should, then, under existing circumstances, calmly and justly 
estimate the true value of the Union, and the ultimate probable 
effects of a permanent dissolution when accomplished. "We 
shall then be prepared to make the greater efforts to prevent 
that overwhelming misfortune ; for the efforts of a peoj)le, like 
those of an individual, will be in proportion to the estimated 
mao;nitude of the end to be attained. 



§ 2. The object of Government, and the right to institute it. 

It may be proper, in this place, to remark, that the main 
blessings of government consist not so much in conferring afhrm- 
ative good, as in preventing intolerable evils. The primary 
object of government is to protect individuals against each 
other, and the combined whole against foreign enemies. It is 
not expected that government should contribute to the support 
of individuals, but that they should contribute to the support 
of the government. Men, when they enter into political society, 
must give up a portion of their individual natural rights, and 
confer upon their governmental agents the power to afibrd them 
efficient individual and national protection in return for the 
rights thus surrendered, and the powers thus conferred. This 
protection is the greater good ; otherv/ise government would 
not exist. 

It may also be proper to state in this connection, that, as a 
general rule, each distinct people have the political right to de- 
termine from time to time the form and powers of their own 
government. This right, however, is A^ested in the combined 
whole, speaking through the majority as its proper organs, and 
not in each separate part, acting alone for itself; otherwise a 



VALUE OF TUE UNION. 9 

part would bo greater than the whole. But what constitutes a 
distinct people is often a very difficult question, wdiich can only 
be determined by the circumstances of each particular case. 
]N"o intelligible general rule can be laid down ; because nature 
herself has not, in most cases, distinctly marked the appropriate 
boundaries of empires. 

§ 3. The lenefits of the Union in the past, a rational hasis for 
estimating its henefits in the future. 

The benefits derived from the Union in the past have been 
too palpable to need proof. They are seen everywhere, on land 
and on sea, at home and abroad. Our progress, in all the ele- 
ments of material greatness, has been unprecedented. It has 
surely been sufficiently rapid to satisfy reasonable minds. "We 
know from actual, and not merely speculative proof, what we 
have already accomplished. Could the same success have been 
attained without the Union ? If not, can Ave reasonably expect 
to prosper in the future by dissolution ? The proper answer to 
this question will depend upon a just estimate of the circum- 
stances now existing, and those that will probably arise in the 
future. 

As* the geographical position, and the natural resources of 
our country, will be the same in the future as in the past, the 
argument drawn from this fact to show that we arc, in the na- 
ture of the case, but one people, will always remain substan- 
tially the same. If it be true that our country has been so fa- 
vored by nature, as to render one government for the whole, 
the most beneficial for each and every part, then tiq jpermanent 
severance of the Union can be justified by mere temporary 
causes. Permanent eficcts should flow from permanent causes. 
Time will cure temporary evils ; and it is wiser to endure them, 
trusting to the future justice of our country, than to war against 
the laws of nature. Our separation from Great Britain was 
justified, not -so much by the alleged oppressions of the parent 
country, as by the fact that we could not be properly governed 
as one people. Our distance from the seat of government beyond 
seas, and the extent and varied capacity of our own country to 
sustain a distinct and powerful nation, were amj)lc and perma- 
nent reasons for a permanent separation. 



10 VALUE OF THE UNION. 

§ 4. Diffioulty of designating the dividing line hetween the 

sections. 

As a dissolution is possible, we will suppose it accomplished 
for the sake of the argument only ; and then estimate, as well 
as we can, the probable legitimate results that will flow from 
such a condition. In doing so, we pass over the difficulty of 
dividing the public property, this being a temporary evil that 
time could cure. 

The geographical features of the country are such, that the 
difficulty of determining the line separating the sections would 
seem to be insuperable. If we suppose the line so drawn as to 
separate the free from the slave States, the two divisions would 
be separated by an arbitrary air line, easily crossed* at all points, 
and run without the least regard to the natural features of the 
country. It would commence on the Atlantic shore and extend 
west, passing more than two thousand miles through a country 
generally fertile, of good surface for settlement, with sufficient 
timber and water, and capable of sustaining a dense population 
in immediate proximity to the line on both sides of it ; thus 
dividing our territory into two long narrow strips, lying with 
their sides to each other. There being between the two sections 
no impassable mountain ranges, or other serious natural obstruc- 
tions, the only practicable mode of j)reventing smuggling would 
be to have no tariff. To fortify such a line, so as to make inva- 
sion difficult, would be impossible. Besides, this arbitrary line 
severs the great natural arteries of commerce, connecting every 
part of the rich and extensive valley of the Mississi^jpi with the 
Gulf of Mexico. The position of this line would be determined, 
not by the natural features of the country, but upon the basis of 
a social institution, which, in the natural progress of population, 
will not probably endure to the end of the present century in 
many of the States where it now exists. 

§ 5. Frequent wars would he the consequence of permanent 

dissolution. 

The people on both sides of this long line of division would be 
brought face to face ; and, as they speak the same language, the 
excitable masses would understand the insults of each other. 



VALLE OF TUB UNIOX. 11 

Our present national patriotic songs would no longer be sung, 
but "would become obsolete and be forgotten. Other patriotic 
songs, celebrating alternate victories and defeats of both sections, 
-svould take their places. How could peace be preserved bct\s'cen 
dense masses of population thus situated ? 

Tlie truth of this position is shown by the experience of other 
nations. Tlie States of 'South America are generally divided 
from each other by air lines ; and, though the peoj^le are of the 
same mixed races, profess the same religion, sj)eak the same 
language, and have substantially the same manners and customs, 
revolutions and desolating wars are very common among them. 
The main reason is their proximity to each other. Brazil and 
Chili form exceptions to this rule ; and, while the government 
of the first is a monarchy and that of the second a republic, they 
are both prosperous. Brazil is practically separated from other 
States by vast uninhabited tracts of country ; and her greater 
population, and preponderating power, give her additional se- 
curity. Chili is separated from La Plata by the Andes on the 
east, and from Bolivia by a desert on the nortli.'-'^ Contiguous 
nations are always enemies. The liistory of the world shows 
this to be true. Before the union of Scotland and England, the 
two nations were nearly always at war. The effect of the union 
has been to prevent these frequent wars ; and this is the main 
reason why it has proven of such immense benefit to both coun- 
tries. The mutual advantages of the union all admit. (Ilal- 

* The population of Brazil is some 8,000,000. Xavy in 1857 consisted of forty- 
two ships in active service. Total naval force in "1858, 4, GOO men. Kevenue in 
1859, was lOk millions of dollars. Expenditures 18 millions. " The soundness of the 
general financial condition of the country was made evident during the commercial 
panic in the latter part of 1857, when Brazil stood firm, while almost all other countries 
were drawn into the vortex of the crisis." (Xew Am. Cy., art. Brazil.) 

The population of Chili in 1857 was 1,558,453. " The Chihans are not a long- 
lived people ; pulmonary diseases, affections of the heart and liver, and epidemic dysen- 
tery prove fatal to great numbers, and reduce the average duration of human life there 
to a lower point than in more variable climates." " Tlic climate, though so delightful, 
seems to predispose the inhabitants to apathy and indolence, the dolce far nicntc of 
Italy." " A large part of the soil of Chili is unproductive." " The Chilenos are more 
enterprising than the inhabitants of most of the South American States, and the plant- 
ers and merchants often accumulate large amounts of property." The mercantile 
marine in 1848 was 105 vessels, tonnage 12,628. In 1858, 2G9 vessels, tonnage 
02,209. .Increase in ten years 1G4 vessels, and 49,581 tons. " The improvement of 
the people in intelligence, wealth, and social progress, has been rapid within the last 
six years." (Id., art. Chili.) 



12 VALUE OF THE UNION. 

lam's Constitutional History, 675.) England and France are 
neighboring nations and hereditary enemies. 

Besides these canses of war, there would exist others not to 
be overlooked or forgotten. Tlie people inhabiting the free 
States of the valley of the Mississippi, would never rest satisfied 
while the mouths of that river were in the possession of a foreign 
power. From the delicate and intricate nature of the interests 
involved, no treaty stipulations could possiblj^ avoid difficulties. 
One party would feel insecure under the consciousness that the 
other was master of all access by water to the ocean. This jeal- 
ousy and fear would inevitably produce collisions. 

§ 6. These %oars would he carried on hj regidar soldiers. 

Each section is threaded with railroads and telegraj^hic lines, 
and a large invading force could be concentrated at almost any 
point along the line, within three days' time. In the j)resent 
advanced state of the world, no time is lost in sending orders, 
and very little in concentrating troops. Xapoleon said war was 
the art of concentrating the greatest number of men at a gi^'en 
point within a given time. The knowledge of the science and 
art of war is so well diffused in this age, and the courage of dis- 
ciplined troops of different nations is so nearly equal, that num- 
bers generally prevaiL Tlie general history of battles within 
the present century will prove this to be true, l^apoleon, in 
his first campaigns, was able to rout his enemies ; but long be- 
fore the close of his career, he could only drive them from the 
field in good order. In most of the great battles fought by him, 
the hostile forces were about equal. 

"When this Union shall haA'e been permanently dissolved, 
each division will be compelled to keep a standing army as large 
as it can support. The weaker section would naturally seek 
comj)ensation in superior discipline. This would lead to the 
permanent creation of a large standing army ; and what one 
does, the other, in self-defence, would be compelled to do. It 
would not be safe or wise to rely upon militia to repel a sudden 
invasion. Men engaged in the peaceful pursuits of life must 
have time for consideration, and some discipline, before they 
can have confidence in each other, and possess courage to 
meet a disciplined foe. The weakness of a peaceful and un- 



VALUE OF THE UNION. 13 

armed community was fully shown by the raid of old John 
Brown. 

The condition of things on the continent of Europe proves 
the correctness of these views. France has a standing army of 
some seven hundred thousand men. Prussia, Austria, and Rus- 
sia, the same ; while that of Great Britain does not exceed three 
hundred thousand, and only some sixty thousand of these are 
kept at home. Were it not for her vast colonial possessions, 
and her general interference with continental affairs, her stand- 
ing army, in time of peace, need not to exceed a hundred thou- 
sand men. The reason is, that her territory cannot be invaded 
by land, and she has the control at sea. We are, while united, 
in a better condition, because a wide ocean lies between us and 
all other powerful nations. An invasion of our country, while 
united, would be idle, if not impossible. But when we are once 
divided, the condition of things is entirely changed, and our 
enemies are at our very doors, always ready and able to attack 
us ; and we must, of necessity, be able at all times to meet them. 
A standing army of a reasonable size, is not an evil but a ben- 
efit ; but one as large as a people can possibly sustain, is a most 
grievous burden. It takes too much from the industrial force 
of the country, gives rise to exorbitant taxation, and becomes 
dangerous to liberty. 



§ T. The evils of war. 

The evils of war are not properly estimated by the great 
mass of men, because they are prone to see only its glories. 
History shows that, in general, the masses are the first to clamor 
for war, and the first to ask for peace. By sad experience they 
find out the dire effects of this destructive custom. 

Aside from the terrible destruction of human life,* the effects 
of frequent wars, in a business and financial point of view, may 

* The effect of the frequent wars among a portion of the States of South America 
has been to produce a great disparity between the number of the sexes. Lt. Gibbon, 
in his account of the exploration of the valley of the Amazon, under the direction of 
the Department of the Navy, spealdng of the town of Santa Cruz, in Bolivia, says : 

" The women are very pretty, and affectionate to their husbands. He chooses her 
from among five^ there being about that number of women to one man in the town." 
(Vol. ii., p. 161.) 

I know not the author of the following article, nor have I examined authorities to 



14 VALUE OF THE rNIOX. 

be appreciated by considering tlie present condition of tlie dif- 
ferent powers of Europe. Tlie plan of carrying on war by 
means of national loans, is of modern origin. Tbe beginning of 
the national debt of Great Britain was occasioned by tlie war 
with Holland in 1672. (Hallam's Con. His., 452, note.) It was 
further increased by the nine years' unsuccessful war, which 
terminated at the peace of Ryswick, and much augmented by 

prove the correctness of the statistics given ; but they are substantially correct in so 
far as my own recollection of history has enabled me to judge : 

Havoc to Life by War. — It is difficult to conceive what fearful havoc this custom 
has made of human life. It has at times entirely depopulated immense districts. In 
modern, as well as ancient times, large tracts have been left so utterly desolate that a 
traveller might pass from village to village, even from city to city, without finding a sol- 
itary inhabitant. The war of 1756, waged in the heart of Europe, left in one instance 
no less than twenty contiguous villages without a single man or beast. The Thirty 
Years' War, in the seventeenth century, reduced the population of Germany from 
12,000,000 to 4,000,000— three-fourths ; and that of Wirtemberg from 500,000 to 
48,000 — more than nine-tenths ! Thirty thousand villages were destroyed ; in many 
others the population entirely died out ; and in districts once studded with towns and 
cities, there sprang up immense forests. 

Look at the havoc of sieges, in tha,t of Londonderry 12,000 soldiers, besides a vast 
number of inhabitants; in that of Paris, in the 16th century, 80,000 victims of mere 
hunger ; in that of Malplaquet, 34,000 soldiers alone ; in that of Ismael, 40,000 ; of 
Vienna, 70,000; of Ostend, 120,000; of Mexico, 150,000; of Acre, 300,000; of Car- 
thage, 700,000; of Jerusalem, 1,000,000. 

Mark the slaughter of single battles — at Lcpanto, 25,000 ; at Austerlitz, 30,000 ; 
at Eylau, 60,000 ; at Waterloo and Quatre Bras, one engagement, in fact, 70,000 ; at 
Borodino, 80,000 ; at Fontenoy, 100,000 ; at Arbela, 300,000 ; at Chalons, 300,000 
of Attila's army alone ; 400,000 Usipetes slain by Julius Caesar in one battle, and 
430,000 Germans in another. 

Take only two cases more : The army of Xerxes, says Dr. Dick, must have 
amounted to 5,283,320 ; and, if the attendants were only one-third as great as is com- 
mon at the present in Eastern countries, the sum total must have reached nearly six 
millions. Yet in one year this vast multitude was reduced, though not entirely by 
death, to 300,000 fighting men ; and of these only 3,000 escaped destruction. Jenghiz- 
Khan, the terrible ravager of Asia in the 13th century, shot 90,000 on the plains of 
Nessa, and massacred 200,000 at the storming of Kharasm. In the district of Herat, - 
he butchered 1,600,000, and in two cities with their dependencies, 1,760,000. During 
the last twenty-seven years of his long reign, he is said to have massacred more than 
half a million every year ; and in the first fourteen years he is supposed, by Chinese 
historians, to have destroyed not less than eighteen millions — a sum total of 32,000,000 
in forty-one years. 

In any view, what a fell destroyer is war ! Napoleon's wars sacrificed full six 
millions, and all the wars consequent on the French Revolution some nine or ten 
millions. The Spaniards are said to have destroyed in forty-two years more than twelve 
millions of American Indians. Grecian wars sacrificed 15,000,000; Jewish wars, 
25,000,000 ; tlie wars of the twelve Caesars, 30,000,000 in all ; the wars of the Roman 
Empire, of the Saracens and the Turks, 60,000,000 each ; tliose of the Tartars, 89,000,- 
000 ; tliose of Africa, 100,000,000 ! " If we take into consideration," says the learned 
Dr. Dick, "the number not only of those who have pi^rishod througli the natural conse- 
quences of war, it will not perhaps be overrating the (k'strnction of human life, if we 
affirm that one-tenth of the human race has lieen destroyed by the ravages of war, and, 
according to this estimate, more than fourtcon thousand niillioiis of human beings have 
been slaughtered in war since the lieginning of tlie world." Edmund Burke went still 
further, and reckoned the sum total of its ravages, from the first, at no less than thirty- 
five thousand millions. 



VALUE OF THE UNIOIf. 15 

the war of tlie grand alliance, commenced in 1702, for the suc- 
cession to the crown of Spain.* 

The immediate relief to the nation has led to the practice, 
in modern times, of creating national debts to defray the extra- 
ordinary expenses of war. What the ultimate result of such a 
practice may be, time alone can determine. But the amount 
of the national debts of the different countries of Europe has 
become so great, that it would seem almost impossible to increase 
them to any considerable extent. There must, in the nature of 
things, be a point beyond which the national credit cannot go ; 
and when that point shall have been reached, the nation will 
not only have to pay the expenses of new wars without the aid 
of further loans, but also, at the same time, pay the interest 
upon former loans, or repudiate. A resort to the latter alterna- 
tive would effectually destroy the credit of the government, and 
lead to a discontinuance of the practice of national loans. 

This practice of creating great national debts is a selfish one, 

* " A war of nine years, generally unfortunate, unsatisfactory in its results, carried 
on at a cost unknown to former times, amid the decay of trade, the exhaustion of 
resources, the decline, as their sums give reason to believe, of population itself, was the 
festering wound that turned a people's gratitude into factiousness and treachery." 
(Hallam's Con. His., p. 5G5.) The historian, on page 564, gives a detailed description 
of the financial condition of England, showing that " public credit sank so low, that 
in 1696 it was hardly possible to pay the fleet and army from month to month, and a 
total bankruptcy seemed near at hand. . . . Certainly the vessel of our Common- 
wealth has never been so close to shipwreck as in this period." 

The war of the Grand Alliance produced results about as exhaustive. " The king- 
dom had been impoverished by twenty years of uninterruptedly augmented taxation, 
the annual burdens being triple in amount to those paid before the Revolution. Yet 
amid these sacrifices, we had the mortification of finding a debt rapidly increasing, 
whereof the mere interest far exceeded the ancient revenues of the crown, to be be- 
queathed, like an hereditary curse, to unknown ages." (Id., 60S.) Though England 
had not^been invaded, such was the state of distress produced by war, that the " pop- 
ulation was at best stationary." France had suffered more severely. (Id., 609 ) 
During " the hundred years' war" between England and France, (1337 to 1-153,) the 
sufferings of both nations were great, but those of France much greater. Twice France 
was upon the eve of becoming a dependency of the English crown. 

" The nation, exhausted by the long wars of William and Anne, recovered strength 
in thirty years of peace that ensued ; and in that period, especially under the prudent 
rule of Walpole, the seeds of our commercial greatness were gradually ripened. It was 
evidently the most prosperous season that England had ever experienced .... In 
the war of 1743, which, from the selfish practice of relying wholly on loans, did not 
much retard the immediate advance of the country, and still more after the peace of 
Aix-la-Chapelle, a strikmg increase of wealth became perceptible."— (Hallam's Con. 
His., 656.) 



IG VALUE OF THE UNION. 

and of very doubtful utility. Besides the sore burdens entailed 
upon posterity to pay tbe annual interest, tlie practice encour- 
ages war, and leads to extravagance in public expenditures. 
The debt of Great Britain, in 1857, was some eight hundred 
millions of pounds sterling, and the annual expenses thereon 
some twenty-eight millions. In 1817 it was eight hundred and 
forty-eight millions. Tlie debt has been reduced a few millions 
by the government taking advantage of the decline in the rate 
of interest. The debt of France, in 1859, was some seventeen 
hundred millions of dollars, and the annual charges thereon 
some one hundred millions. In 1814, it was only two hundred 
and forty millions. The enormous cost of war may be appre- 
ciated by the fact, that in the war with France, from 1793 to 
1815, Great Britain increased her national debt from two hun- 
dred and thirty-nine to eight hundred and forty-eight millions 
of pounds sterling, the increase being about equal to three 
thousand millions of dollars. The population of Great Britain 
is some twenty-eight millions, and that of the United States 
some thirty-one millions ; and yet the annual interest upon her 
national debt is nearly double the yearly expenses of the Fed- 
eral Government in time of peace.* 

"We have escaped the frequent wars that have so much deso- 
lated Europe. This impunity has arisen from the advantages 
of our position. Although our fathere suffered many privations 
in the Revolution, they did not endure the extreme exhaustion 

* " What are the chief sources of expense in every government ? What has occa- 
sioned that enormous accumulation of debts with which several of the European nations 
are oppressed ? The answer plainly is, wars and rebellions ; the support of those insti- 
tutions which are necessary to guard the body politic against these two most mortal 
diseases of society. The expenses of those institutions which relate to the more do- 
mestic police of a State, to the support of its legislative, executive, and judicial de- 
partments, with their different appendages, and to the encouragement of agriculture 
and manufactures, (which will comprehend almost all the objects of State expenditure,) 
are insignificant in comparison with those that relate to the national defence. In the 
kingdom of Great Britain, where all the ostentatious apparatus of monarchy is to be 
provided for, not above one-fifteenth part of the annual income of the nation is appro- 
priated to the class of expenses last mentioned, the other fourteen-fifteenths are 
absorbed in the payment of the interest of debts contracted for carrying on the wars in 
which that country has been engaged, and in the maintenance of fleets and armies." 
— (Hamilton, Federalist, No. 34, p. IGO.) 

It will ho observed that these remarks were made by Ilamilton before the enormous 
increase of the debt of England, arising from the twenty-one years' war with France, had 
occurred. Tiicy are, therefore, more just at tliis time than when they were made. 



VALUE OF THE ri^IOX. 17 

felt on the continent of Europe, particularly in France. Our 
country was new, rich in soil, and too extensive to be thoroughly 
overrun ; and there was, consequently, little or no starvation. 
France contributed one-twentieth of her entire population dur- 
ing the times of Napoleon, and lost one million seven hundred 
thousand men upon the field of battle. One-twentieth of our 
entire population during the Eevolution, would have given us 
an army of about one hundred and seventy-five thousand men, 
a greater number than we lost during that memorable period. 
In the late war with England our sufferings were comparatively 
slight. We lost but few men in comparison to our population, 
and expended but a small amount of treasure, creating a na- 
tional debt so small that the country, without exorbitant taxa- 
tion, was enabled to pay it off in some sixteen years after the 
close of the war in 1815. But before the termination of the 
present unhappy contest, our people may know, perhaps, the 
real miseries of war, and be capable of estimating, with toler- 
able accuracy, the legitimate results of a permanent dissolution 
of the Union. This will be but one of many wars that must 
result in the future from such a misfortune. 



§ 8. Effects of dissolution uiwn national credit. 

With a divided Union, each section being invadeable by 
land, the credit of each would be bad, and high interest upon 
national loans the necessary result. Great Britain can borrow 
money at three per cent., while France, and other powers on 
the continent, are compelled to pay from five to six. In the 
course of a few centuries, this disadvantage is severely felt. All 
the countries of Europe, invadeable by land, have been invaded 
within the present century ; and several of them more than 
once. Each successful invasion costs the country invaded about 
the labor of a generation, and destroys, for the time at least, 
the ability to pay the interest upon its bonds. People wlio in- 
vest their funds in government loans, are generally persons who 
seek repose in retirement from business, and who desire a safe 
and certain income. If they obtain only a low rate of interest, 
they can manage to live within their income, when the in- 
terest is punctually paid. Security, not profit, is their primary 
object. 

9, 



IS VALUE OF THE UiNION. 



§ 9. Effects of dissolution upon the investment of capital. 

A countiy, inyadeablc by land, is not an inviting field for 
the employment of large amounts of capital. Capitalists arc 
men who examine carefully, and judge dispassionately. They 
seek a safe and permanent investment for then- money. They 
are not generally speculative men. Taken as a whole, the soil 
of France is of superior quality ;" and the productive part of it 
'bears a larger proportion to the entire extent of the country than 
in most European States, being as 41 to 52 ; and yet the want 
of large capital has been severely felt in both manufactures and 
agriculture. (New Am. Cy., art. France.) This fact is but 
the legitimate result of her geographical position. The knowl- 
edge of the fact that a country is invadeable by land, that it 
has been invaded repeatedly, and (judging the future by the 
past) that it will be invaded again, will necessarily deter large 
capitalists from investments there so long as other opportunities, 
more safe, are available. It does not matter how brave and 
skilful the people of a country invadeable by land maybe, there 
will arise, in the progress of human affairs, some untoward 
crisis, when a successful invasion can be made. Factions among 
the people, a weak, rash, or irresolute cabinet, superior talent at 
the head of a rival nation, and many other causes, may arise. 
Had England been invadeable by land, could her people, with 
all their conceded skill and valor, have resisted the army led by 
!N"apoleon against Eussia ? A people thus situated always work 
under the dispiriting reflection that their country may be suc- 
cessfully overrun at any time, and the results of their industry 
either greatly impaired or totally swept away. During the Pe- 
ninsular war, the factories of Sjiain were mostly destroyed by 
the military operations of the hostile forces. 

The advantages of her position is the reason why the capital 
of the world is mainly concentrated in England. Capital is 
safer there than at any other easily accessible point. Hence the 
greatest houses, financial and commercial, are found there. Our 
coimtry united possesses like advantages in respect, at least, to 
many portions of the globe. Capital has been steadily accumu- 
latinir, and commerce and manufactures have increased in a 
corresponding degree. But let the Union be permanently sev- 



VALL'E OF THE TNION. 19 

ered, and tlie disastrous results will become, in due time, too 
palpable to be mistaken. 

§ 10. Dissolution fatal to su])Temacy at sea. 

!N^o eoimtiy, invadeable by land, can reasonably hope, at 
tliis late day, to become the leading naval power among the 
maritime nations of the earth. A people thus situated must, 
pf necessity, keep np a large standing army, and cannot, there- 
fore, support, at the same time, the most efhcient navy in the 
world. These two burdens together would be more than any 
people could well bear. 

Had the position of the French and English been reversed, 
the result of their rivalship on the sea might have been very 
different. As it was, the English had the more powerful motives 
to impel them to victory. They knew that, if successful, not 
only honor, but safety from invasion at home, wonld be the 
result. On the contrary, the French knew success at sea would 
still leave their country open to invasion by land; and that, 
therefore, the necessity for keeping up a large standing army 
would not be obviated. 

United, we will be able, in the course of another century, if 
not sooner, to pnt afloat a navy equal, if not superior, to any 
on the ocean. But with a divided country, that great prospect 
vanishes. 



§ 11. Despotism the idtimate resiolt of dissolution. 

It has long been the fixed opinion of the best English and 
American statesmen, that large standing armies are inimical to 
free government. Mr. Pulteney, as cited by Mr. Ilallam, de- 
clared in 1732 that he " always had been, and always would 
be, against a standing army of any kind ; it was to him a ter- 
rible thing, whether nnder the denomination of parliamentary 
or any other. A standing army is still a standing army, what- 
ever name it may be called by ; they are a body of men distinct 
from the body of the people ; they are governed by different 
laws ; blind obedience and an entire submission to tlio orders 
of their commanding officers is tlieir only principle. The na- 
tions around us are already enslaved by those very means ; by 



20 VALUE OF THE UNIOX. 

means of their standing armies tliey liave every one lost tlieir 
liberties ; it is, indeed, impossible tbat the liberties of the people 
can be preserved in any country where a numerous standing- 
army is kept up." 

The opposition to standing armies has often been carried to 
extremes. One of reasonahU size is not dangerous to liberty, 
but necessary to security. It is true, that no government can 
be beneficially administered, unless it gives general satisfaction 
to at least a majority of the governing class, whatever that class 
may be ; but it is equally true, that no government can long 
rule by universal consent ; and every practical government 
must, therefore, have the means to promptly put down mere 
factions, and to render revolution, in the beginning, difhcult to 
minorities. A standing army, sufficient for this purpose, is 
necessary to every well-regulated State. The extreme right of 
revolution is very often abused. Masses of men are often gov- 
erned by passion and not by reason. Suffering men must and 
will complain ; and from whatever cause these ills may arise, 
they arc generally prone to attribute them to the government. 
The burdens of government are plainly seen and felt ; while its 
blessings " fall silently like the dews of heaven," and are often 
unseen or under-estimated by the governed. 

The dangerous character of a large standing army arises 
from the' nature and purposes of its organization. Strict disci- 
pline and ready obedience are absolutely necessary to military 
efiiciency. There must be perfect unity in the organization, 
and the mighty mass must move as one man, impelled by a 
single will ; and, therefore, to secure this essential unity of ac- 
tion, the command can only be given to a single mind. This 
fact makes the government, whatever may be its form, a iwacti- 
cal despotism. Tliere may be a legislative body, and the people 
may be allowed to elect its members ; but they will not vote 
freely under the gigantic shadow of a large standing army ; and 
a majority of the members, when elected, will not oppose the 
determined will of the commander-in-chief Until the army 
itself becomes demoralized, or the people come to the united 
and desperate resolution to risk all to carry their point, they 
will not even hegln any serious opposition to the measures of 
government. The natural instincts of men will force them, 
under such circumstances, to side with power. 



VAiUE OF THE UNION. 21 

Mr. Gibbon, in summing up liis views of tlie character of tlie 
imperial government of Kome, very justly remarks : 

" To resume, in few words, the system of the imperial gov- 
ernment, as it was instituted by Augustus, and maintained by 
those princes who understood their own interest and that of the 
peojjle, it may be defined an absolute monarchy disguised by 
the forms of a commonwealth. The masters of the Eoman 
world surrounded their throne with darkness, concealed their 
irresistible strength, and humbly professed themselves the ac- 
countable ministers of the Senate, whose supreme decrees they 
dictated and obeyed."' — {Decline and Fall, chap, iii.) 

§ 12. The same siibject continued. 

A permanent dissolution of the Union being accomplished, 
republican government would not only fail on this continent, 
but representative government, in any efficient form, could 
never be sustained. Despotism — the one-man power — would 
be the legitimate and inevitable ultimate result. It would be 
the only practical theory under the circumstances. Govern- 
ment must be practical to be government at all. The theory 
may be beautiful to the imagination, but unless strictly prac- 
tical, it must fail to accomplish the very end intended by its 
institution. 

Tlie practical efficiency of a governmental theory depends 
upon its proper adaptation to the cii'cumstances and geograph- 
ical position of the country to be governed. A theory practical 
for one country, will not operate successfully in another differ- 
ently situated. So, under a people practically free, the power 
over the purse and the sword of the nation must be placed in 
the hands of representatives /Vet???/ chosen by the people them- 
selves. In England, for example, no army can exist, and no 
money can be appropriated, without the consent of Parliament. 
Owing to her impunity from invasion, the Government can wait 
the sluggish movements of Parliament ; but France, and other 
countries differently situated, cannot do this ; especially in this 
fast age. "When the country is invaded, and the national ex- 
istence is in peril, it will not do to wait two months to elect 
a Speaker, and spend two months' time in debating over an 
appropriation bill. Action, prompt and united, must be 



22 VALUE OF THE UNION. 

liad ; and onlj tlic strongest form of government can secm^e it ; 
for it is true, tliat " great armies, prompt obedience, unlimited 
power over the national resources, secrecy in council, rapidity 
in execution, belong to an energetic and enlightened despotism." 
(Ilallam's Con. His., 460.) On the field of battle there must 
be but one commander-in-chief ; and a country invaded is but 
a large battle-field. In such a case, it will not be safe to rely 
upon the action of deliberative bodies ; because, in times of 
extreme peril, they are often factious or paralyzed.'^ This re- 
sults from the known characteristics of the human mind, men 
being prone to difi'er in their views, and apt to be tenacious of 
their opinions, in proportion to the estimated importance of the 
subject to which they relate. During the existence of the Ee- 
public, tlie members of the Assembly were engaged in debating 
some abstract philosophical theory, while their enemies were 
invading France. 

Hasty and prejudiced writers generally speak in disparaging 
terms of the despotic governments of Europe. Their objections 
are not well and thoroughly considered. The true fundamental 
cause is found in the necessities of their condition. The best 
statesmen on the continent know that the English representative 
theory never can be successfully carried out, except in countries 
substantially situated as England is. It has been repeatedly 
tried and as often failed. " It is not a new observation that the 
people of any country (if, like the Americans, intelligent and 
well-informed) seldom adopt, and steadily persevere for mau}^ 
years, in any erroneous opinions respecting their own interests." 
(Mr. Jay, Federalist^ ]^o. 3, p. 14.) The people of the difier- 
ent States of Europe are enlightened, and have had most ample 
time and opportunity to test the practical character of the differ- 

* " Are not popular assemblies frequently subject to the impulses of rage, resent- 
ment, jealousy, avarice, and of other irregular and A'iolent propensities ? Is it not well 
known that their determinations are often governed by a few individuals in whom they 
place confidence, and that they are of course liable to be tinctured by the passions and 

views of those individuals ? Is it not time to awake from the deceitful dream 

of a golden age, and to adopt as a practical maxim for the direction of our political 
conduct, that we, as well as the other inhabitants of the globe, are yet remote from the 
happy empire of perfect wisdom and perfect virtue ? " — (Hamilton, Federal isi, Xo. C, 
pp. 27 and 20.) 

..." But popular, that is, numerous bodies, are always prone to excess, both 
from the reciprocal influence of their passions, and the consciousness of irresponsibil- 
ity "— (ITallam'i Con. His., GlY.) 



VALUE OF TUE L'KIOX. 23 

ent theories of government, and tlio conclusions of their best 
intellects upon this subject can hardly be erroneous. 

It is the general opinion of writers upon the science of gOA*- 
ermnent, that a despotism is the strongest and most efficient. 
Time and common sense have proven this opinion to be true. 
In this form of government there is less security against oppres- 
sion at home, and greater security against oppression from 
abroad. What theory a people should adopt, depends upon 
the question, which is the greater danger ? In the Ecvolution, 
our greatest danger was from abroad ; and, by making Wash- 
ington a dictator, we saved our country. When that danger 
had passed away, we could well dispense with this energetic but 
desj^otic power. If the Union were divided, the same circum- 
stances would compel the people of the different divisions to do 
the same thing ; and as the danger from abroad would be im- 
mediate and permanent, the despotism must, of necessity, be- 
come permanent also. In the Avars between the little States of 
South America, they confer dictatorial j^owers upon their Presi- 
dents ; and though they are often blamed, it is by those who 
have not justly estimated the exigencies of their condition. It 
was the fear of invasion, that seems to have constituted one of 
the main reasons why the people of England submitted so read- 
ily to the despotic powers exercised by the Tudors and Stuarts. 
It Avas not the OA^ershadowing influence of a standing army, 
as this was only begun under the reign of Charles II., and 
amounted in 1GG2 to only some 5,000 m^n, a A'ery small force 
as compared to the standing armies of other European mon- 
archies of that age. — (Ilallam's Con. His., 411.) 

United, Ave are in a better condition than England ; because 
our position not only gives us like impunity from iuA^asion, but 
exempts us, at the same time, from all pretences for entering 
into entangling foreign alliances, to preserve the balance of 
poAver. Tlie practice of England in making war on. the conti- 
nent for this reason, has caused her A^ery great sacrifices in 
blood and treasure. Her present enormous' national debt is 
mainly the result of such Avars.* Whether this practice on her 

* AA'c have already seen that the national debt of Great Britain was increased in 
twenty-one years' war with France, more than GOO millions of pounds sterling. At the 
commencement of that mighty struggle, her army was very small ; and, from this cause, it 
was years before she could act on the continent with vigor. It has been contonded bv 



24 VALUE OF THE UNION. 

part can be justified by wise statesmanship may admit of very 
grave doubts. But let us sever and divide our country, and we 
•will be in a worse condition than the people on the continent 
of Europe. There are many great natural features on that con- 
tinent that mark the dividing lines between nations, making 
defence more easy, and invasion more slow and difficult ; and 
the doctrine of the balance of power is there established, and a 
weak State can exist, because the Great Powers will not tolerate 
its conquest. In our country, we have no impassal)le moun- 
tains, and there is here no doctrine of the bahxnce of power 
established, and the weaker State would be at the ultimate 
mercy of the stronger. The people of the more powerful State 
would, at last, come to the conclusion that their ovrn safety and 
the best ultimate humanity would justify the complete conquest 
of their neighbor. There is every reason to believe, that, for 
some time before the Union, the people of England had inflex- 
ibly made up their minds to conquer Scotland. The people of 
both countries had been so long harassed and impoverished 
by their frequent wars, that the patience of both must have 
been well nigh exhausted. It had often required the utmost 
exertions of the Scots to sustain themselves. (Ilallam's Con. 
His., 675.) From the geographical features of our country, 
and its position on the globe, it would seem that the Almighty 
never intended it to be divided.* 

able writers, that it is the better and more economical policy of that kingdom to keep 
up a standing army of at least mediimi size. 

" In the late war, the inability of Great Britain to act from the first with vigor, 
compelled her to fight twenty-one years, with incalculable waste of blood and treasure, 
merely to restore the balance of power ; and the nation, which at first had only three 
battalions for service, ended, in 1814, with a mass of more than a million of men in 
arms." — (En. Brit., art. Wai; p. '73G.) 

* " This country and this people seem to have been made for each other, and it 
appears as if it was the design of Providence, that an inheritance so proper and conven- 
ient for a band of brethren, united to each other by the strongest ties, should never 
be split into a number of unsocial, jealous, and alien Sovereignties." — (Jay, Federalist, 
No. 2, p. 12.) 

" The world may politically, as well as geographically, be divided into four parts, 
each having a distinct set of interests. Unhappily for the other three, Europe, by her 
arms and by her negotiations, by force and by fraud, has, in different degrees, extended 
her dominion over them all. Africa, Asia, and America have successfully felt her 
domination. The superiority she has long maintained, has tempted her to plume her- 
self as the mistress of the world, and to consider the rest of mankind as created for her 
benefit. Men, admired as profound philosophers, have, in direct terms, attributed to 



VALTJE OF THE UNION. 25 

§ 13. A desjpotism inimical to a free press. 
It would seem impossible, in tlie very natm-e of tilings, 
that a free press should ever exist under a despotism, for two 
reasons : 

1. The attacks of the press are levelled against a shigle in- 
dividual ; and there are but few persons who would singly bear 
the attacks of the press, when they have the power to restrain 
them. It is not in human nature. 

2. The safety of the government itself would require re- 
strictions upon the press. Though a despotism may be the 
very best practical government for a country invadeable by 
land, and situated in the vicinity of neighbors sufficiently 
powerful to give serious trouble ; yet such is the restlessness 
of dense populations, that they are prone to see only results, 
while they overlook their causes. A free press in a despotism 
would be constantly makmg disparaging comparisons between 
the condition of the people at home, and that of the people 
living under a free government abroad ; while the true cause 
of this diflerence would be carefully concealed, and the masses 
unjustly excited against their own government. The difference 
in the amount of freedom enjoyed would be palpable, but the 
cause of that difference would be misrepresented, and the public 
censure would fall upon the government. Superficial and pre- 
judiced reasoners are almost certain to assign the wrong cause 
for the known effect. 

§ 14. Dissolution exposes us to foreign aggression . 

This chaj^ter will be concluded with the following forcible 
extract from the forty-first number of the Federalist by Mr. 
Madison."^' 

her inhabitants a physical superiority ; and have gravely asserted, that all animals, and 
with them the human species, degenerate in America ; that even dogs cease to bark, 
after having breathed awhile in our atmosphere.* Facts have too long supported those 
arrogant pretensions of the European ; it belongs to us to vindicate the honor of the 
human race, and to teach that assuming heathen moderation. Union will enable us to 
do it. Disunion will add another victim to his triumphs." — (Hamilton, Federalist, No. 
11, p. 57.) 

* The reader is referred to the Appendix, containing the sixth and eighth numbers 
of the Federalist, by Hamilton. The reason for their republication in this form is, that 

Ilecberches philosophiques sur les Americains. 



26 VALUE OF THE UNION. 

" Tlic Union itself, wliicli tlie Constitution cements and se- 
cnres, destroys every pretext for a military establislmient which 
could he dangerous. America united, with a handful of troops, 
or without a single soldier, exhibits a more forbidding posture 
to foreign ambition, than America disunited with a hundred 
thousand veterans ready for combat. It was remarked, on a 
former occasion, that the want of this pretext had saved the 
liberties of one nation in Europe. Being rendered by her in- 
sular situation, and her maritime resources, imjoregnable to the 
armies of her neighbors, the rulers of Great Britain have never 
been able, by real or artificial dangers, to cheat the public into 
an extensive peace establishment. The distance of the United 
States from the powerful nations of the world, gives them tha 
same happy security. A dangerous establishment can never 
be necessary or plausible as long as they continue a united 
people. But let it never for a moment be forgotten, that they 
are indebted for this advantage to their union alone. The mo- 
ment of its dissolution will be the date of a new order of things. 
The fears of the weaker, or the ambition of the stronger States 
or confederacies, will set the same example in the new as Charles 
YII. did in the old world. The example will be followed here 
from the same motives which produced universal imitation there. 
Instead of deriving from our situation the precious advantage 
which Great Britain has derived from hers, the face of America 
will be but a copy of that of the continent of Europe. It will 
present liberty everywhere crushed between standing armies 
and perpetual taxes. The features of disunited America will 
be even more disastrous than those of Europe. Tlie sources of 
evil in the latter are confined to her own limits. 'No superior 
powers of another quarter of the globe intrigue among her rival 
nations, inflame their mutual animosities, and render them the 
instruments of foreign ambition, jealousy, and revenge. In 
America, the miseries sj) ringing from her internal jealousies, 
contentions, and wars, would form a part only of her lot, A 
plentiful addition of evils would ,have their source in that rela- 
tion in which Europe stands to this quarter of the earth, and 
which no other quarter of the earth bears to Europe. 

the present edition of that work seems to have been exhausted, and copies are difficult 
to be had. It is well to often recur to this mine of wisdom, and especially at this 
period. 



CAUSES OF THE CEISIS. 27 

" This picture of the consequences of disunion cannot be too 
•highly colored, or too often exhibited. Every man who loves 
peace ; every man who loves his country ; every man who 
loves liberty, ought to have it ever before his eyes, that he may 
cherish in his heart a due attachment to the Union of America, 
and be able to set a due value on the means of preserving it." 



CHAPTEE n. 

CAUSES OF THE CRISIS. 

§ 1. Causes of the Crisis stated. 

Yaeious causes have been assigned by our public men, and 
by the press, for the present imhappy condition of the country ; 
all of which have doubtless had their influence. Some attribute 
it to the agitation of the slavery question ; others to disappointed 
party and sectional ambition ; and others to the general corrup- 
tion of our politicians. But the true fundamental cause lies 
much deeper ; and is to be found in the theory of our govern- 
ment. All others are but secondary causes ; and constitute, in 
fact, only different tests of the theory, as did the tariff question 
of 1833. 

A true theory will vindicate, and a false theory betray it- 
self, sooner or later. Every man in the nation may enthusias- 
tically support an erroneous theory of government in the be- 
ginning ; and yet time will assuredly show its fallacy. Tlic 
eternal and inflexible laws of logic can no more be violated with 
impunity than the laws of natm-e. Man is but a sidiordlnate 
being, and cannot lift himself above the laws of truth. If 
he attempts to do so for the time being, his ultimate fall will 
be only the more painful in proportion to the extent and dura- 
tion of his" transgression. 

The fundamental vice in our theory, is the attempt to divide, 
between the Federal and State Governments, that supreme ele- 
ment or principle which we call sovereignty — a thing, in its 



28 CAUSES OF TILE CRISIS. 

very nature, indivisible.* In reference to tlie j)owers conferred 
njjoii tlie Federal Government, we are one people ; but in re-* 
gard to the powers reserved to the States, we constitute dis- 
tinct and antagonistic communities ; and the powers reserved 
to tlie States are so great in amount, and so important in char- 
acter, tliat, by a simple abuse of these powers, the Union can 
be ultimately rendered intolerable ; and the theory itself pro- 
vides no efficient and peaceful remedy for the evil. Tlie only 
remedy provided by the Constitution in reference to the abuse 
of the reserved powers, is found in the will of each State, and 
not in that of the combined whole. 

By our theory, the citizen is made capable of committing 
treason, at one and the same time, against two separate and 
distinct sovereignties. This is a solecism in government. It is 
very true, that the theory assumes to clearly distribute the mass 
of duties to be performed by the citizen into two classes, and to 
assign one class to each sovereignty. It requires him to serve 
two distinct masters ; but, at the same time, claims to give each 
master jurisdiction over him in different respects. 

Another great vice in the theory, but subordinate, perhaps, 
to the other, is to be found in the number of elective officers, 
and the short duration of their terms. Our theory of govern- 
ment substantially requires more public and private virtue to 
sustain it, than any other ; and yet its inevitable tendency is 
ultimately to undermine and subvert the A^ery virtue upon 
which alone it can hope to live. 

These may be justly considered very bold and summary po- 
sitions. But are they not triie ? If true, they should be be- 
lieved ; if false, they should be unhesitatingly rejected ; and 

* In the case of Barron v. The City of Baltimore, Cliief Justice Marshall, in deliv- 
ering the opinion of the Court, said : 

" The Constitution was ordained and established by the people of the United States 
for themselves ; for their own government, and not for the government of the individ- 
ual States. Each State established a Constitution for itself, and, in that Constitution, 
provided such limitations and restrictions on the powers of its jjarticular government 
as its judgment dictated." 

So, in the case of Ableman v. Booth, in December Term, 1858, (21 Howard, 510,) 
Cliief Justice Taney, in delivering the unanimous opinion of the Court, said : 

"And the powers of the General Government and of the State, although both exist 
and are exercised within the same territorial limits, are yet separate and distinct sov- 
ereignties, acting separately and independently of each other, within their respective 
^i)hercs." 



CAUSES OF TnE CRISIS. 20 

■wlietlicr true or false, time will determiuc. These positions are 
stated witliout hesitation, and will be supported hy the reasons 
hereinafter given, and others that will no doubt suggest them- 
selves to the mind of the intelligent reader. It is the simple 
duty of every writer to be honest, and to j)lainly state that 
which he believes to be true, without regard to apprehended 
praise or censure. 

But while these positions are thus plainly and boldly stated, 
it is done with all due and becoming respect for the views of 
others ; and especially for those of a great majority of the 
patriotic men, who took part in forming the Constitution. 
There is, however, the best reason to know, that the wisest of 
our statesmen of that day never did give our theory their en- 
tire approbation. Tliey supported it, not as perfect, but as be- 
ing better than the Articles of Confederation. It was consid- 
ered by them as an experiment only. The authority of a few 
truly great minds is of more weight than that of many subor- 
dinate ones. 

§ 2. Circumstances iinder which the Constitution was framed 

and ratified. 

During the progress of the Eevolution, and after the Col- 
onies had declared their independence, impelled by the pressure 
of common dangers, sufferings, and hopes, the thirteen States 
entered into the Articles of Confederation. The circumstances 
of the times did not admit of mature deliberation. 

Congress was the organ through which the Confederation 
spoke ; and in the passage of measures each State had one vote. 
TJiese measures were addressed to organized communities, and 
not to the individuals of whom they were composed. Each 
State was bound to contribute its portion to the common treas- 
ury ; and this portion was based upon the A'alue of all land 
witliin each State ; but the taxes necessary to raise the na- 
tional reveilue were to be levied and collected by each State. 
The vote of nine States was necessary to i:>ass the more impor- 
tant measures ; such, for example, as related to war, treaties, 
coining money, and ascertaining the sums necessary for the 
defence and welfare of the United States. In the thirteenth 
and last article it was declared : 



30 CAUSES OF THE CRISIS. 

" Each State shall abide by the determinations of the United 
States in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the articles of this 
Confederation shall be invariably observed by every State, and 
the union shall be perpetual ; nor shall any alteration at any 
time hereafter be made in any of them, unless such alteration 
be agreed to by a Congress of the United States, and be after- 
wards confirmed by the legislatures of every State." 

l!>[ot withstanding the excellent dispositions of the people, 
and the strong pledges of inviolable fidelity contained in 
the Articles, the Confederation soon failed through its own 
weakness. In reference to this state of things, Hamilton, in 
the fifteenth number of the Federalist^ has these forcible re- 
marks : 

" It has happened as was to have been foreseen. The meas- 
ures of the union have not been executed ; the delinquencies of 
the States have, step by step, matured themselves to an ex- 
treme, which has at length arrested all the wheels of the IsTa- 
tional Government, and brought them to an awful stand. Con- 
gress at this time scarcely possesses the means of keeping up .the 
form of administration, till the States can have time to agree 
upon a more substantial substitute for the present shadow of a 
Federal Government. Things did not come to this desperate 
extremity at once. The causes which have been specified, pro- 
duced at first only unequal and disproportionate degrees of 
compliance with the requisitions of the Union. Tlie greater 
deficiencies of some States furnished the pretext of example, 
and the temptation of interest to the complying, or least delin- 
cpient States. Why should we do more in proportion than 
those who are embarked with us -in the same political voyage ? 
Why should wc consent to bear more than our proj)er share of 
the common burthen ? These were suggestions Avhich human 
selfishness could not withstand, and which even speculative 
men, who looked forward to remote' consequences, could not 
without liesitation combat. Each State yielding to the per- 
suasive voice of immediate interest or convenience, has succes- 
sively withdrawn its support, till the frail and tottering edifice 
seems ready to fall upon our heads, and crush us beneath its 
ruins." 

Tlie Convention assembled under very embarrassing circum- 



CAUSES OF THE CKISIS. 3i 

stances. Tliej had not only tlie difficult task to perform," of 
formiDg a Constitution for a great country ; but they had to do 
this by the union or merging of independent sovereign States. 
Tlie members not only differed in their own views, but they 
had no power oi final action ; their province being very similar 
to that of a committee charged with drafting a bill upon a given 
subject, to be afterwards submitted to the House. The Con- 
stitution framed by the Convention, had to j)ass through the 
severe ordeal of the separate State Conventions ; and by a pro- 
vision of the seventh article, the ratification of nine States was 
necessary to give it effect ; and then only between the States 
so ratifying the same. This provision was in violation of the 
Articles of Confederation, by which the assent of all the States 
was required to make amendments. As all the States under 
the Confederation were sovereign, and the people had become ac- 
customed to this independent equality, any proposition to re- 
duce, either the importance of all, or the relative importance of 
the smaller States, would be certain to meet with the most de- 
termined opposition in the separate State Conventions. 

Statesmen are not always able to do what they would ; and 
they are, therefore, forced by circumstances, to either do noth- 
ing, or to do the best they can. The times were perilous, and 
the necessity for action most imperative ; and the best minds 
in the Convention were so trammelled, and so compelled to act 
against their better judgment, that they were not able to ac- 
complish as much, perhaps, as those of inferior capacity, but 
whose views Avere made in harmony with State pride and local 
jealousy. 

§ 3. The same siibject further considered. 

Tlie fear that the Constitution would be rejected by the 
separate States, and of the great perils likely to follow" such a 

* In bis disquisition on government, Mr. Calhoun has these just and forcible remarks : 
" Instead of a matter of necessity, it is one of the most difficult tasks imposed on 
man to form a Constitution worthy of the name ; -while to form a i^erfect one — one 
that would completely counteract the tendency of government to oppression and abuse, 
an<I hold it strictly to the great ends for which it is ordained — has thus far exceeded 
human wisdom, and possibly ever will. From this another striking difference results. 
Constitution is the contrivance of man, while government is of Divine ordination. Man 
is left to perfect what the wisdom of the Infinite ordained as necessary to preserve the 
race." — (Works of Calhoun, vol. i., p. 8.) 



82 CAUSES or the ceisis. 

misfortune, no doubt had a serious and often a controlling in- 
fluence over tlie members of tlie Convention. -' They knew that 
in each of the separate State Conventions, all the elements of 
opposition would have full scope for their exercise, and that a 
rejection by five States only would be entire defeat. In these 
separate State Conventions, State pride, local attachments, and 
an unreasonable dread of the loss of liberty, would effectually 
defeat any strong theory of government. The peoj^le of Amer- 
ica had felt, more in anticipation than in practice, the unlimited 
powers claimed over them by the mother country. The masses 
had not had time to fully comprehend the true character of 
their changed condition. The powers which they had feared, 
were not only without limit, but they were exercised by a 
country beyond seas ; in whose councils they had no represent- 
ative voice, and the interests of whose people were Avidely dif- 
ferent from, and even antagonistic to, their own. They had 
passed through revolutioii, and they were now placed in the 
7ieio position of re-organization. During the progress of the 
Eevolution, and for years before, they had been alone taught 

* An examination of the proceedings of the Convention will show the influence 
which the fear of rejection exercised upon the minds of members. The plan of pro- 
ceedings adopted by that body was for members to introduce their propositions in the 
form of resohitions. Edmund Randolph of Virginia, on the 29th May, 178*7, (Journal, 
p. 68,) introduced a series of resolutions, and a part of the 6th resolution of this series 
gave Congress the power " to negative all laws passed by the several States, contraven- 
ing, in the opinion of the national legislature, the articles of union, or any treaty sub- 
sisting under the authority of the Union." This proposition was agreed to. May 31, 
(Journal, 87.) Mr. Pinckney, of South Carolina, on the 6th of June, (Journal, 104.) 
gave notice of a motion for a reconsideration, which motion was not agreed to, June 
8, (Journal, lOY.) The resolutions of Mr. Randolph, as amended and agreed to, are 
given in full, (Journal 134,) and this clause is included in the words of the original. 
Afterwards the proposition was not agreed to by the following vote : 

Yeas — Massachusetts, Virginia, and North Carolina 3 

Xays — Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South 
Carolina, and Georgia 7 

The testimony of M. Gouverneur Morris, upon whose motion the third section of 
the fourth article of the Constitution was introduced, is very strong. In a letter written 
in 1803, he said : 

" In wording the third section of the fourth article, I went as far as circumstances 
would permit, to establish the exclusion. Candor obliges me to add my belief, that, 
had it been more pointedly expressed, a strong opposition would have been made," 
—(3 Mor. Wri., 192.) 

It is not at all surprising that so many difficulties of construction have arisen, when 
those who framed the Constitution candidly admit, that the fear of opposition made 
them purpose! II clothe their ideas in ambirjuous terms. 



CAUSES OF TIIK CRISIS. 33 

to QX'sist power ; but now tliey were called upon to bestow it 
upon tlieir own Government. Tliej did not seem to fully un- 
derstand tlic fact, that even the same powers in their own Gov- 
ernment would be less dangerous to their liberties, than in that 
of England. Thej had, veiy naturally, under the circumstances, 
an extreme dread of power. It was true, that the Confederation 
had most signally failed ; but the old habits of thought and feel- 
ing were still 2)0werful. An unreasonable confidence in human 
nature, and an exaggerated estimate of the capacity and fidelity 
of the States, was the great evil of that day, and has been ever 
since. The architects who framed the Constitution, were com- 
pelled to model the work according to the existing views of 
'others. 

The following extracts from the fifteenth number of the 
Federalist^ by Hamilton, will place this subject in a clear and 
strong light : 

" It is true, as has been before observed, that facts too stub- 
born to be resisted, have produced a species of general assent 
to the abstract proposition, that there exist material defects in 
our national system ; but the usefulness of the concession, on 
the part of the old adversaries of federal measures, is destroyed 
by a strenuous opposition to a remedy, upon the only princij^le 
that can give it a chance of success. "While they admit that 
the Government of the United States is destitute of energy, 
they contend against conferring upon it those povN'ers that are 
requisite to confer that energy. They seem still to aim at things 
repugnant and irreconcilable ; at an augmentation of Federal 
authority, without a diminution of State authority ; at sover- 
eignty in the Union, and complete independence in the mem- 
bers. Tliey still, in fine, seem to cherish with blind devotion 
the political monster of an imperiu7n in impertoP 

" There was a time when we were told that breaches, by the 
States, of the regulations of the Federal authority, Avere not to 
be expected ; that a sense of common interest would preside 
over the conduct of the respective members, and would beget a 
full compliance with all the constitutional requisitions of the 
Union. This language, at the present day, would appear as 
wild as a great j)art of what we now hear from tlie same 
quarter will be thought, when we shall have received further 
lessons from that best oracle of wisdom, experience. It at all 
3 



31 CAUSES OF THE CRISIS. 

times betrayed an ignorance of tlie true springs by wliicli hu- 
man conduct is actuated, and belied tlie original inducements 
to the establisliment of civil power. Why has government been 
instituted at all ? Because the passions of men will not con- 
form to the dictates of reason and justice, without constraint. 
Has it been found that bodies of men act with more rectitude 
and greater disinterestedness than individuals? The contrary 
of this has been inferred by all accurate observers of the con- 
duct of mankind ; and the inference is founded upon obvious 
reasons. Eegard to reputation has a less active influence, when 
the infamy of a bad action is to be divided among a number, 
than when it is to fall upon a single one. A spirit of faction, 
which is apt to mingle its poison in the deliberations of all" 
bodies of men, will often hurry the persons of whom they are 
composed, into ^proprieties and excesses, for which they would 
blush in a private capacity." 

§ 4. The radical vice of the Confederation practically contin- 
ued in the Constitution. 

" Tlie great and radical vice, in the construction of the ex- 
isting Confederation, is in the principle of legislation for states 
or GOVEKNMENTS ill their coepokate or collective capacities, and 
as contradistinguished from the individuals of whom they con- 
sist." — Hamilton. 

This was the inherent vice in the former theory. As already 
stated, the fundamental vice in our existing theory, is the at- 
tempt to divide, between the Federal and State Governments, 
that suj)reme element or principle, which we call sovereignty. 
These two vices, in their ultimate practical results, are much 
the same. They differ in degree, and in the period of time re- 
quired to plainly develop their legitimate tendencies ; but they 
are still the same in practical effect. 

Under our Constitutional theory, the Federal Government 
is one of delegated limited powers ; while the powers of the 
separate State Governments consist of those reserved. Both 
the Federal and State Governments are Governments of limited 
powers. 

The Constitution assumes to define the line of separation be- 
tween the delegated and reserved powers. But this task, in the 



CAUSES OF THE CEISIS. 35 

very nature of tilings, is one of 23aramount clifRcnlty. Conced- 
ing that the framers of the instrument had, in all cases, a clear 
conception of that which they intended to convey to others ; 
still they were compelled to clothe their ideas in human lan- 
guage. Mr. Madison, in the thirty-seventh number of the Fed- 
eralist.^ has very forcibly expressed himself in reference to the 
great difficulty of correct definition. He says : 

" The use of words is to express ideas. Perspicuity therefore 
requires, not only that the ideas should be distinctly formed, 
but that they should be expressed by words distinctly and ex- 
clusively appropriated to them. But no language is so copious 
as to supply words and phrases for every complex idea, or so 
correct as not to include many, equivocally denoting different 
ideas. Hence it must happen, that however accurately objects 
may be discriminated in themselves, and however accurately 
the discrimination may be conceived, the definition of them 
may be rendered inaccurate by the inaccuracy of the terms in 
which it is delivered. And this unavoidable inaccuracy must 
be greater or less, according to the complexity and novelty of 
the objects defined. "When the Almighty himself condescends 
to address mankind in their own language, his meaning, lumi- 
nous as it must be, is rendered dim and doubtful, by the cloudy 
medium through which it is communicated." 

And Webster, in his reply to Hayne, very justly said : 

'• jSTo definition can be so clear as to avoid possibility of 
doubt ; no limitation so precise as to exclude all uncertainty." 

The Constitution is a very concise instrument, and yet 
within its narrow limits are contained the definitions and limi- 
tatiojis of our complex theory of government. From its nature 
as a fundamental law, it could only lay down general principles 
in general terms. It could only deal in generals, and not in 
particulars. 

The right to determine the extent of its own powers in the 
last resort,-' must, of necessity, reside either in the General Gov- 



* A distinction is often taken between the assumed right of Xullification and 
Secession. But it would seem that they both substantially rest upon the same basis, 
namely : the alleged right of each separate State to determine for itself, in the last 
resort, the extent of its own powers ; and, by necessary consequence, the extent of the 
delegated powers of the Federal Government. It bemg true that the action of the 
General Government, beyond its delegated powers, is null and void ; it follows, of 



36 CAUSES OF THE CRISIS. 

ernmentj or in that of eaeli separate State. Tliis ultimate riglit 
must exist somewhere in the theoiy ; as there can be no peace- 
ful and efficient means to settle controversies regarding the 
relative powers of the two jurisdictions. If we concede this 
sovereign right to exist in each State, then it is clear that the 
Constitution is, in substance and effect, but the Articles of the 
old Confederation. The only difference is, that while under the 
former theoiy, the acts of Congress had to be executed by the 
separate States within the limits of each ; under the Constitu- 
tion, the separate States can defeat the action of the United 
States, by direct interj)osition. In one case non-action, and in 
the other action, will accomplish the same end. But the con- 
stitutional power of the separate States to accomplish the pur- 
pose intended is the same, the mere '>node onl}^ being different. 

If we concede, however, that it is the right of the General 
Government, under the Constitution, to determine the extent of 
its own powers in the last resort ; still the practical difficulty is 
not wholly, but only partially, obviated. As the Federal Gov- 
ernment is one of limited powers, its action beyond the scope 
of these powers must be void. The inevitable result of a want 
of power in the agent, is to render the act null and void ; and, 

necessity, that if the ultimate right of coustitutional construction rests with each State, 
then the State can nullify or secede, at her election. 

As the right to determine the extent of its own powers must necessarily exist in 
government, it has been often doubted whether limitations of power w"ere of any 
ultimate practical utility. In other words, whether the power of construction was not 
practically equivalent to the power of legislation. The objection is good against a 
theory of government, which makes no provision for its own amendment. By an 
abuse of the power of construction, the will of the framers of the Constitution may be 
violated ; and, in the contemplation of such a theory of government, there is no rem- 
edy. The extreme i-ight of revolution exists in fact, but not in the contemplation of 
the governmental theory ; as that extreme right is never sanctioned by any consti- 
tution. 

But the objection as against a constitution which provides for its own amendment, 
is not wholly, but only partially true. The will of the framers of such a constitution 
may be violated for a time ; but as the power to amend always exists, the misconstruc- 
tion can be corrected. Our courts hold the same relation to the Constitution that tlie 
courts of England now bear to the Acts of Parliament. Her judges under both theo- 
ries, now hold their offices during good behavior, and the powers of the framers of our 
Constitution, and those of Parliament, have no theoretical limitation. On the contem- 
plation of each tlicory, they can do any thing within the limits of physical possibility. 
The judges in England may misconstrue an Act of Parliament, but that body can amend 
the Act, and make it too plain to be misunderstood. So, of our Constitution, it can 
be niade plainer, and the evils of misconstruction thus be removed. 



CAUSES OF TILE CRISIS. 6i 

consequently, all persons, natural and artificial, have tlie un- 
doubted right to disregard the act. An unconstitutional meas- 
ure of Congress is no law, but simply a void act. 

§ 5. The same suhject continued. 

If it be true, (as we think it is,) that, in the contemplation 
of the existing Constitution, the Federal Government has the 
right to determiile the extent of its own powers in the last re- 
sort ; and, of consequence, the extent of the powers reserved to 
the separate States ; then these several positions would seem to 
be correct : 

1. If the question be executive, the right oi final decision 
rests with the President.* 

2. If legislative, with Congress. 

3. If judicial, with the Supreme Court. 

4. And the question, whether the particular matter be ex- 
ecutive, legislative, or judicial, with the same Court. 

This view makes the Constitution consistent in theory, and 
avoids, theoretically, the radical vice of the Confederation. But 
is the difficulty avoided 'practically ? Has not our theory sanc- 
tioned the continued existence of great separate organized, and, 
in many respects, antagonistic communities within the Federal 
territorial jurisdiction ? Has it not, in fact, permitted the con- 
tinuance of powers inimical, in practice, to the successful and 
peaceful operation of the Federal Government ? 

For the purpose of illustration, we will suppose the question 
in controversy to be judicial. The President cannot act upon 
it at all ; neither can Congress ; and the Judiciary must wait 
until the question is brought before it. Courts must await 
the action of parties. It may be years before any one may 
choose to bring up a case involving the point in controversy. 
In the mean time, the States, as well as other parties, must act. 
upon their own construction. "When, therefore, a new and diffi- 
cult question involving State rights comes up, the States are 
prone to decide in their own favor ; and having once committed 

* " The act of Feb. 28, 1'795, (1 Statutes at Large, 421,) which confers power on the 
President to call forth the militia in certain exigencies, is a constitutional law, and the 
President is the exclusive and final judge whether the exigency has arisen." — (12 
Wieaton, 19.) 



38 CAUSES OF THE CKISIS. 

themselves, the pride of sovereignty and the impulses of passion, 
will make them adhere with obstinacy to their ojDinions ; and 
although the controversy may be peacefully settled, the angry 
conflict between the two jurisdictions leaves its sting behind. 
It is also true, that individuals may have very great confidence 
in their own construction of the Constitution, especially where 
their interests, passions, or prejudices are concerned ; but this 
pride of opinion is not so great as it is in sovereignties ; and in- 
dividuals have not that power which resides in States. The 
decisions of Courts can be more readily executed upon individ- 
uals standing alone, than upon great organizations, or upon in- 
dividuals under their protection, rightful or assumed. 

Tlie following remarks of Hamilton, in the fifteenth number 
of the Federalist^ though made with reference to the States 
while under the Confederation, are alike applicable to them 
under the Constitution : 

" In addition to all this, there is, in the nature of sovereign 
power, an impatience of control, which disposes those who are 
invested with the exercise of it, to look with an evil eye upon 
all external attempts to restrain or direct its operations. From 
this spirit it happens, that in every political association Avhich is 
formed upon the principle of uniting in one common interest a 
number of lesser sovereignties, there will be found a kind of 
eccentric tendency in the subordinate or inferior orbs, by the 
operation of which there will ba a perpetual efibrt to fly from 
the common centre. Tliis tendency is not difficult to be ac- 
counted for. It has its origin in the law of power. Power, 
controlled or abridged, is almost always the rival and enemy of 
that power by which it is controlled or abridged." 

By our theory, the same citizen owes allegiance to two sep- 
arate and distinct powers, both of which he knows are of lira- 
tVe(^ jurisdiction ; and that the action 6f each beyond its con- 
stitutional sphere, is void. But he is not always able to know 
which is constitutionally right in its claims to his obedience, 
lie is often left in doubt ; and while his best judgment may tell 
him that his superior allegiance is due to the Federal Govern- 
ment, his heart is with his State, not only because she is nearest 
in position to him, and can first reach him by her process, but 
because he finds her in possession, under the Constitution itself, 
( '^ all those impoi'tant powers of government that must virtually 



CAUSES or THE cKisis. 39 

affect liis dearest interests. The power over life, liberty, repu- 
tation, and proj)erty, is reserved to his State. 

Our experience, short as it has been, and under the favor- 
able circumstances heretofore attending our experiment, has 
shown that the predictions of Hamilton,"-^ by far the greatest 
statesman of our country, were true. In almost every instance 
when a controversy has arisen between the Federal Government 
and that of a State, the latter carried its point. Even the case 

* "It is a known fact in human nature that its affections arc commonly -weak 
in proportion to the distance or diifusiveness of the object. Upon the principle that a 
man is more attached to his family than to his neighborhood, to his neighborhood than 
to the community at large, the people of each State would be apt to feel a stronger bias 
towards their local Governments, than towards the Government of the Union, unless 
the force of that principle should be destroyed by a much better administration of the 
latter." 

"There is one transcendent advantage belonging to the province of State Govern- 
ments which alone suffices to place the matter in a clear and satisfactory light. I mean 
the ordinary administration of civil and criminal justice. Tliis, of all others, is the 
most powerful, most universal, and most attractive soui'ce of popular obedience and 
attachment. It is this which, being the immediate and visible guardian of life and 
property, having its benefits and its terrors in constant activity before the public eye, 
regulating all those personal interests, and familiar concerns, to which the sensibility 
of individuals is more immediately awake — contributes more than any other circum- 
stance, to impress upon the minds of the people affection, esteem, and reverence towards 
the Govenimcnt. This great cement of society, which will diffuse itself almost wholly 
through the channels of the particular Governments, independent of all other causes of 
influence, wOuld insure them so decided an empire over their respective citizens, as to 
render them at all times a complete counterpoise, and not unfrequently dangerous rivals 
to the power of the Union." , 

" Though the ancient feudal systems were not, strictly speaking, confederacies, yet 
they partook of the nature of that species of association. There was a common head, 
chieftain, or sovereign, whose authority extended over the whole nation, and a number 
of subordinate vassals, or feudatories, who had large portions of land allotted to them, 
and numerous trains of inferior vassals or retainers, who occupied and cultivated that 
land upon the tenure of fealty, or obedience to the persons of whom they held it. Each 
principal vassal was a kind of sovereign v/ithin his particular demesnes. The conse- 
quences of this situation were a continual opposition to the authority of the sovereign, 
and frequent wars between the great barons, or chief feudatories themselves. The 
power of the head of the nation was commonly too weak, either to preserve the public 
peace, or to protect the people against the oppression of their immediate lords. This 
period of European affairs is emphatically styled by historians the times of feudal an- 
archy." — (Federalist, No. lY.) 

" Reasons have been already given to induce- a supposition that the State Govern- 
ments will too naturally be prone to a rivalship with that of the Union, the foundation 
of which will be the love of power ; and that, in any contest between the federal head 
and one of its members, the people will be most apt to unite with their local govern- 
ment."— (Id., No. 25.) 



4:0 CAUSES OF THE CKISIS. 

of South Carolina in 1833, in reference to the question of the 
tariff, did not constitute an entire exception, as is too often sup- 
posed. It is true that President Jackson promptly issued his 
proclamation, in which he assumed decisive ground in support 
of the laws of the nation ; but it is equally true that the tarift' 
was so modified as to receive the support of the representation 
of that State in Congress. In other words, it was a compromise 
which decided nothing. 

But in the contest between the Federal Judiciary and the 
State of Georgia in 1831, in reference to the rights of the Cher- 
okee Indians under a treaty of the United States, that State 
carried her point with a high hand, though General Jackson 
was then President. The following extracts from Benton's 
Thirty Years' Yiew, will give some general idea of its char- 
acter : 

" Judge Clayton, in whose circuit the Indian counties fell, 
at his first charge to the grand jury assured the Indians of pro- 
tection, warned the intermeddlers of the mischief they were 
doing, and of the inutility of applying to the Supreme Court 
With respect to the Supreme Court, the judge de- 
clared that .he should pay no attention to its mandate — ^liolding 
no writ of error to lie from the Supreme Court of the United 
States to his State Court — but would execute the sentence of 
the law, whatever it might be, in defiance of the Supreme 
Court ; and such was the fact. Instigated by foreign interfer- 
ence, and relying upon its protection, one George Tassels, of 
Indian descent, committed a homicide in resisting the laws of 
Georgia — was tried for murder — convicted — condemned — and 
sentenced to be hanged upon a given day. A writ of error, to 
bring the case before itself, was obtained from the Supreme 

Court of the United States The day for the execution 

of Tassels came round : he was hanged : and the writ of the 
Suj)reme Court was no more heard of." — (Yol. i., 165, IGG.) 

The Supreme Court might have sustained the validity of i\\Q 
act of the Legislature of Georgia extending her jurisdiction over 
the Cherokees, had the case gone up to that Court ; but the 
State Court and the Governor decided for themselves, (and 
fully carried out their decision,) that the Supreme Court had 
no jurisdiction in such cases. ' This was deciding the very ques- 
tion that was first in issue. This action of the State authorities 



CAUSES OF THE CEISIS. 41 

was based upon one of two grounds : 1. That tlic right to de- 
termine, in the last resort, the extent of its own powers, rests 
with each State ; or, 2. That the Constitution has provided no 
mode of determining the question of conflicting jurisdiction be- 
tween the Federal and State tribunals, but has left them in 
perpetual conflict. Col. Benton denies the alleged right of 
]Srullification and Secession, while he inconsistently sustains the 
action of Georma. 



§ 6. The same siibject further considered. 

The mode in which the Constitution was ratified, has given 
rise to great doubts, as to the true character of the Government 
created by the instrument. The historical fact is certain, that 
the States existed, as distinct sovereignties, at the time that in- 
strument was formed ; and that each State ratified the Consti- 
tution for itself alone, acting in its organized capacity as a unit. 
The little State of Delaware, for example, would not have been 
bound by the Constitution, without her own separate ratifica- 
tion, though every other State had done so. 

. Though it be not within the scope of this work to enter into 
any elaborate discussion of a question which has so much di- 
vided the public men of the nation ; yet the writer may be per- 
mitted to state concisely his view of a single point. 

As the States existed when the Constitution was formed, 
there was but one of two logical modes in which this could 

* " And the writ of the Supreme Court was no more heard of,^^ says CoL Benton. 
This is a melancholy truth. Here was a court claiming to be the supreme judicial 
tribunal of a great nation, that could not even execute its process. Who can have any 
confidence in, or respect for, a court of such extravagant pretensions ; but, in fact, pos- 
sessing so little real power ? True, the individual, in whose person a great and deci- 
sive principle of law and justice was violated, was obscure, and of mixed blood. Still, 
for that very reason, the justice and majesty of the law should have been vindicated. 
It is the glory of a true theory of government, that its protection is alike over all, and 
equally imparted and. efficient in all cases. History shows that the great and eternal 
principles of justice are always first violated in the person of some poor and obscure 
individual. But the principle itself, once violated with impunity, ceases to conmiand 
respect. 

The remarks of the profound De Tocqueville, (2'7o, note,) that " the governments of 
the States are in reality the authorities which direct society in America," is unfortu- 
nately too true. The result has necessarily been to form sectional and antagonistic 
parties in our country. 



42 CAUSES OF THE CRISIS. 

liare been done. The first, bj tlie separate action of the States 
as ah"eadj organized communities ; and the second, by the 
States first dissolving themselves into their original elements, 
and tlms permitting the people, acting as one mass, to form 
their own Constitution. The first method was the proper one, 
under the existing circumstances ; for the reason, that so long 
as a people remain organized, they must act through their or- 
ganization. It was the most simple, concise, and direct mode 
of action, and equally efficient ; for it must be conceded, that, 
though the Constitution was formed by the separate action of 
each State, they had still the clear right, in this very onode, to 
confer upon the Government any powers they pleased. If they 
had the right to delegate a part, they had equally the right to 
delegate the whole of their own powers. Therefore, the mere 
onode in which the Constitution w^as formed is not conclusive, 
but onlj j)rimayacie evidence of its true character. Had the 
States intended to delegate all their ]50wers to the Union, they 
could have well formed the Constitution in the manner they did 
adopt. At the same time, it must be admitted that the mode 
adopted would require the language of delegation to be more 
explicit and clear; because \h.Q jpriraa facie presumption would 
always be, that the States did not mean to delegate their powers, 
and thus cripple or annihilate themselves. Governments, at 
least in theory, are intended to be perpetual ; and the Inw will 
not, therefore, admit any abridgment of their existing powers, 
or their entire annihilation, without clear proof. The language 
of the Constitution, though clear to a reasonable extent, is yet 
susceptible of being made much more explicit. 

It is true, that while no theory of government can be formed, 
so as entirely to escape forcible resistance at all times ; yet a 
constitution may be made so clear, as greatly to diminish the 
plausihle pretences for alleged constitutional resistance ; and 
thus force reljellious spirits to plainly base their action upon 
the true ground. The people will hesitate much longer in join- 
ing, even for the same alleged cause, a pla,in rebellion, than they 
will in vindicating, by force of arms, a plausible construction of 
the Constitution. Tlie want of a more clear and ex^Dlicit state- 
ment, in the Constitution, of the right of the General Govern- 
ment to determine its own powers, and those of the States, in 
the last resort, has, ior practical purposes, continued the radical 
\\cc of the old Confederation. 



CAUSES OF THE CKISIS. 43 



§ 7. Other effects of divided sovereignty. 

A citizen of the United States and of a State, may be twice 
tried, convicted, and punished for the same act. This results 
from the principle, that he owes allegiance to two sovereigns. 
It has been so repeatedly held by the Supreme Court of the 
United States. In the case of Moore v. The State of Illinois, (14 
Howard, 13,) Mr. Justice Grier, in delivering the oj^inion of 
the Court, among other things, said : 

" Every citizen of the United States is also a citizen of a 
State or Territory. He may be said to owe allegiance to two 
sovereigns, and may be liable to punishment for an infraction 
of the laws of either. The same act may be an offence or trans- 
gression of the laws of both That either or both may (if 

they see fit) punish such an offender, cannot be doubted 

He could not plead the punishment by one in bar to a convic- 
tion by the other ; consequently, this Court has decided, in the 
case of Fox v. Tlie State of Ohio, (5 How. 432,) that a State 
may punish the offence of uttering or passing false coin, as a 
cheat or fraud practiced on its citizens ; and, in the case of the 
United States v. Marigold, (9 How. 560,) that Congress, in the 
proper exercise of its authority, may punish the same act as an 
offence against the United States." 

Mr. Justice McLean dissented, and justly censured the prin- 
ciple that an individual could be j)unished twice for the same 
act ; yet he was unable to satisfy the other judges that the 
opinion of the Court was not truly the law. The j)rovince of a 
Court, even that of the Supreme Court of the United States, is 
simply to declare, not to make the law, Tho question whether 
the principle involved be just or unjust is a matter for the law- 
maker, not the law-exponent, to determine. It is true, that in 
reference to a mere question of construction, where the lan- 
guage of the law is not clear, we may properly inquire into the 
legitimate result of a proposed interpretation. But when the 
meaning is plain, the courts must carry out the intention of the 
legislative power, though the principle, in the opinion of the 
Court, may be unjust ; otherwise, there could be no separation 
of the legislative and judicial functions. 

Bj the second section of the third article it is provided, that 



44 CAUSES OF THE CEISIS. 

the "judicial power shall extend to controversies between two 
or more States ; " but tlie Constitution provides no means of 
enforcing the judgment of the court when rendered. In case 
of resistance, it might be very difficult to carry out the decision 
of the court. Though, from the dignity of tlie parties, it might 
be inferred, that the unsuccessful State would submit with a 
good grace ; yet history shows that bodies of men, when exas- 
perated, are prone to great excesses. Should the present theory 
continue a few years longer, some case will most probably arise 
that will conclusively test this question. 

§ 8. Char aeter of tlie reserved powers. 

As before stated, the powers of the General Government are 
those delegated^ vfliile the powers of the States are those reserved. 
This is clearly stated in the tenth amended article : 

" The powers not delegated to the United States by the 
Constitution, nOr prohibited by it to the States, are reserved to 
the States respectively, as to the people." 

Tliis language is very explicit. If the power be not delegated 
and not prohibited, then it is reserved ; but if it be either del- 
egated or prohibited, it is not reserved. There are certain pow- 
ers not delegated to the United States, that are prohibited to 
the States ; such as, for example, the power to grant titles of 
nobility. Such powers belong to neither the one theory nor the 
other, but are prohibited to both. To ascertain the powers re- 
served to the States, it is necessary ^/'5^ to know the powers 
delegated and prohibited. All other powers of government, 
after subtracting these, are reserved to the States. 

The Supreme Court of the United States has always held 
that the amendments to the Constitution of the United States 
were simply restrictions upon tlie powers of the General Gov- 
ernment, and not upon those of the several States. Thus in the 
case of Barrow v. The City of Baltimore, (7 Peters, 243,) Chief 
Justice Marshall, in delivering the opinion of the Court, said : 

" The people of tlie United States framed such a government 
for the United States as they supposed best adapted to their 
situation, and best calculated to promote their interests. Tlie 
powers they conferred on this Government were to be exercised 
^..y itself ; and the limitations on power, if expressed in general 



CAUSES OF THE CEISIS. 45 

terms, are natnrallj, and, we think, necessarily applicable to 
the government created by the instrmnent. They arc limita- 
tions of power granted in the instrument itself; not of distinct 
governments framed by different persons and for different piu'- 

poses But it is universally understood, it is part of the 

history of the day, that the great Eevolution which established 
the Constitution of the United States was not effected without 

immense opposition In almost every convention by which 

the Constitution was adopted, amendments to guard against the 
abuse of j)ower were recommended. These amendments de- 
manded security against the apprehended encroachments of the 
General Government, not against those of the local govern- 
ments." ■" 

Hence, in that case, the Court determined that the provision 
of the Constitution, that private property should not be taken 
for public use without just compensation, did not apply to the 
States. The same principle was again held by that Court in the 
case of Withers v. Brickley, (20 Howard, 84.) In the case of 
Satterlee v. Matthewson, (2 Peters, 380,) it was decided that 
there was nothing in the Constitution of the United States 
which forbid the Legislature of a State from exercising judicial 
functions. 

In the case of the Bank of the State of Alabama t\ Dalton, 
(9 Howard, 530,) it appeared that the plaintiff recovei-ed judg- 
ment against the defendant in the State of Alabama, February 
7, 1843, and afterwards sued the defendant uj)on tlie record of 

* In the tbirty-eiglith number of the Federalist, Mr. Madison enumerates the 
principal objections urged against the Constitution ; and from that it will be seen how 
few persons objected to the weakness of the Federal Government. The current of ideas 
ran strongly in favor of the States, and against the alleged danger of a strong central 
government. It may seem remarkable that so few minds perceived the defects that 
time has shown to exist. This, however, was the case with respect to the radical vice 
of the Confederation, speaking of which, in the same number, Mr. Madison says : 

" It is observable that among the numerous objections and amendments suggested 
by the several States, when those articles were submitted for their ratification, not one 
is found which alludes to the great and radical error, which on actual trial has discov- 
ered itself." 

The influence which the small States exerted in the formation of the Constitution, 
and their jealousy of the powers of the Federal Government, arc shown by the pro- 
ceedings of the Convention, and may be seen in the fifth article, where it is provided 
that amendments ratified by three-fourths of the States shall be valid ; provided, that 
" no State, without its consent, shall be deprived of its equal suffrage in the Senate." 



46 CAUSES OF THE CKISIS. 

this judgment, in the District Court of the United States for the 
Northern District of the State of Mississippi, November 10, 1846. 
Defendant pleaded the Statute of Limitations of the State of Mis- 
sissippi, passed in 1844, " which (1) bars all suits on judgments 
recovered within the State after the lapse of seven years ; and 
(2) all suits on judgments obtained out of the State in six years, 
in cases of judgments thereafter rendered ; and (3) all suits on 
judgments obtained out of the State before the act was passed 
are barred, unless suit be brought thereon within two years next 
after the date of the act. On this latter provision the defence 
depends," Mr. Justice Catron, who delivered the opinion of 
the Court, remarked : 

" The stringency of the case is, that the Act of Limitations of 
Mississippi invites to the State and protects absconding debtors 
from other States, by refusing a creditor a remedy on his judg- 
ment, which is in full force in the State whence the debtor ab- 
sconded Li administering justice to enforce contracts 

and judgments, the States of the Union act independently of 
each other, and their courts are governed by the laws and mu- 
nicipal regulations of that State where a remedy is sought, unless 
they are controlled by the Constitution of the United States, or 
by laws enacted under its authority." 

The Court, in that case, decided, that " the State law is not 
oj^posed to the Constitution of the United States, or to the act 
of Congress of 1790." The same decision was made in a case 
reported in 18 Howard, 249. 

This act not only made an invidious distinction between 
judgments rendered in and out of the State, but it allowed a 
very short time in which to bring suits upon the latter class of 
judgments. As the State had the power to fix the period of 
two years, it is difficult to set any limits to that power, and a 
much shorter period of time might have been designated. By 
this iniquitous measure, the fraudulent debtor was legally ena- 
bled to pay his creditor by running off. By the act, absconding 
to avoid honest debts was made a virtue. 



§ 9. The same siibject continued. 

Li the case of Mager v. Grima, (8 Howard, 490,) it appeared 
that John Mager, a citizen of the State of Louisiana, left a leg- 



CAUSES OF THE CRISIS. 47 

acy to liis sister, a resident of France. The statute of Louisiana 
imposed a tax of ten per cent, upon legacies to foreigners not 
domiciled within the State.* Chief Justice Taney, in delivering 
the opinion of the Court, said : 

" JSTow the law in question is nothing more than the exercise 
of the power which every State and sovereignty possesses of 
regulating the manner and the term upon which property, real 
and personal, within its dominion may be transmitted by last 
will and testament, or by inheritance ; and of prescribing who 
shall and who shall not be capable of taking it." 

The State had the power to impose the tax, and fix the rate ; 
and it would seem that the discrimination made against foreign- 
ers might have been extended to the citizens of other States, 
and of any particular State. So, the general power " of pre- 
scribing who shair and who shall not take property by last will 
and testament, or by inheritance," would extend to the citizens 
of other States, and of any particular State. 

" A writ of error from the Supreme Court of the TJnited 
States to the Supremo Court of a State, directs the latter court 
to transmit the record of the case to the upper court." (Chief 
Justice Taney. Scott v. Sandford, 19 Howard, 453.) 

But how the Supreme Court could compel a compliance with 
its writ, in case of refusal by the State Court, is a very difficult 
case to determine. In the report of the case of Hunter v. Mar- 
tin, (4 Munford's Yir. Eej)., 1,) it is stated that " the appellee 
Martin obtained a writ of error from the Supreme Court of the 
United States, requiring the Court of Appeals of A^rginia to 
certify the record for re-examination by that court. Tlie Hon- 
orable "William Fleming, president of this Court, complied with 
the writ by certifying a transcript ' imjprovidently ^ as was after- 
wards decided by himself as well as the other judges." 

In that case it was held by the Supreme Court of the United 
States, that " the return of a copy of the record, under the seal 
of the court, certified by the clerk, and annexed to the writ of 
error, is a sufficient return in such a case." Head note of the 
case. (6 "Wheaton, 304.) In the case of Ableman v. Booth, 

* To constitute domicile, " there must bo actual residence in the place, ivitli the 
intention that it is to be a principal and permanent residence." Language of Mr. Jus- 
tice Wayne in delivering the opinion of the Court, in the case of Enuis v. Smith, (14 
Howard, 423.) 



•iS CAUSES OF THE CRISIS. 

(21 Howard, 506,) it appeared tliat the Supreme Court of "Wis- 
consin directed the clerk of tliat court to " make no return to 
the writ of error, and to enter no order upon tlie journals or 
records of tlio court concerning tlie same." The Suj)reme Court 
of the United States, under the circumstances, permitted Mr. 
Black, the attorney-general of the United States, to file a certi- 
fied copy of the record, which had been premously obtained. 
The Court was thus enabled to proceed with the case ; but had 
the statute of the State made it a criminal act in the clerk to 
certify a copy of the record for any purpose, or had that officer 
refused to make out the transcript, the question of the power of 
the Supreme Court of the United States to compel a compliance 
with the writ of error, woiild have been brought up for decision. 
According to newspaper report, that Court has lately decided, 
upon the application of the Governor of Kentucky for a writ of 
mandamus to compel the Governor of Ohio to surrender a fugi- 
tive from justice, that the Federal tribunals have no power over 
State officers. But until a full and authentic report of the case 
is made, we may not understand correctly the exact ground as- 
sumed by the Court. In the case of Tassels, already referred 
to, the prisoner was executed in defiance of the writ of error ; 
and there seems to have been no j^ower in the Supreme Court 
of the United States to vindicate its authority, by punishing 
the oft'ending judge of the State Court. 

§ 10. The, same stibjcct further considered. 

By the second section of the first article of the Constitution, 
members of Congress shall be chosen every second year by the 
people of the several States, and " the electors in each State 
shall have the qualifications requisite for electors of the most 
numerous branch of the State Legislature." It therefore be- 
longs to each State to determine w^ho shall and who shall not be 
citizens of that State. The power of naturalization is exclu- 
Fively conferred upon Congress ; and the exercise of this power 
only makes the alien a citizen of the United States, and not a 
citizen of any particular State."" 

* The question whothcr a person of African descent can become a citizen of the 
United States, was not determined in the case of Seott v. Sandford, only three justices 
deciding that be conld not, namely : Taney, Wayne, and Daniels. Justices Grier, Nel- 



CAUSES OF TUE CKISIS. 49 

" Every State," says Chief Justice Taney, " lias the un- 
doubted right to determine the status or doiuestic and social 
condition of the persons domiciled within its territory, except 
in so far as the powers of the States in this respect arc restrained, 
as duties and obligations imposed upon them by the Constitu- 
tion of the United States."— (10 Howard, 93.) 

And Mr. Justice Curtis, in his most able opinion, delivered 
in the case of Scott v. Sandford, (19 Howard,) uses this lan- 
guage : 

" To what citizens the elective franchise shall be confided, 
is a question to be determined by each State, in accordance 
■with its own views of the necessities or expediences of its own 
condition. "What civil rights shall be enjoyed by its citizens, 
and whether all shall enjoy the same, or how they may be 
gained or lost, are to be determined in the same way." 

The clause of the Constitution which restrains the powers of 
the several States, and imposes duties upon them in reference 
to citizens of other States, is found in the second section of the 
third article, in these words : 

" The citizens of each State shall be entitled to all jDrivileges 
and immunities of citizens in the several States." 

This clause is obscure ; but from the opinion of Chief Justice 
Taney, in the case of Scott v. Sandford, (19 Howard, -IIG,) the 
following conclusions may be drawn : 

son, Campbell, and Catron concurred in the judr/mcnt of the court upon oiher grounds, 
and expressed no opinion upon this point. Justices McLean and Curtis dissented. It 
was conceded by all the justices, tbat each State could make any person a citizen of 
the State. There was no difference of opinion between Chief Justice Taney and Mr. 
Justice Curtis in reference to the naturalization o? foreigners. But as to natives, there 
was this difference : Chief Justice Taney, while clearly conceding the right of each 
State to make any one — native or foreign born — a citizen of the State, denied the right 
of the State to make even a native of African descent, a citizen of the United States. 
Mr. Justice Curtis, on the contrary, said : 

" And my opinion is, that, under the Constitution of the United States, every per- 
son born on the soil of a State, who is a citizen of that State, by force of its Constitu- 
tion and laws, is also a citizen of the United States." 

This language is very clear and explicit ; and this position was sustained by Mr. 
Justice Curtis, by a force of reasoning and authority that would seem to be unanswer- 
able. But as the Constitution only gives Congress power in reference to naturalha- 
tion, and confers no power as to natives ; it is clear, that if the proposition of Mr. 
Justice Curtis be correct, the converse of it must be equally true, namely : that each 
State may exclude any native of the State — white or colored— from citizenship, both 
of the particular State, and of the United States. 

4 



50 CAUSES OF THE CRISIS. 

1. It exempts persons wlio arc at the same time both citizens 
of the United States and of a State, and being in another State, 
from any special laws and police regulations not apj)licable to 
citizens of the latter State. 

2. It gives them the right to enter any other State, singly 
or in companies, without pass or passport, and without obstruc- 
tion, to sojourn there so long as they please, and go when and 
where they please, unless they transgress some law applicable 
to citizens of the State. 

3. It gives them the full liberty of speech in public and pri- 
vate, so far as enjoyed by the citizens of the State. 

4. It gives them the right to hold public meetings, to keep 
and carry arms, so far as citizens of the State would be permit- 
ted to do so. 

It will be seen that none of these privileges, secured by the 
Constitution of the United States, relate at all to State citizen- 
sliip / but that the complete power over that right is reserved 
to each State respectively. For example, the State of Califor- 
nia, by a provision of her Constitution, could exclude all per- 
sons born within any particular State or States from ever be- 
coming citizens of California. 

Any one who will examine the subject carefully, will readily 
find that the mass of powers reserved to the States are not only 
the most important powers of Government, but that they are 
unlimited by the Constitution of the United States, And if we 
follow the rule of construction laid down by the Supreme Court 
of the United States, (and followed by most of the State Courts, 
if not by all,) that the limitations of power contained in the 
amendments to the Constitution of the United States, apply only 
to the Government created by the instrument itself; then it is 
clear that the States possess such a mass of powers, that they 
can, by a simple abuse of those powers, render the Union ulti- 
mately intolerable. For example, the power of one State to 
harass another by hostile legislation and insulting resolutions, 
is entirely without any efficient and peaceful remedy. The 
most partial and invidious legislation may be resorted to, and 
the most harsh and insulting resolution passed by the Legis- 
latures of the difi'erent States. Any State may establish a re- 
ligion, or prohibit the free exercise thereof, abridge the freedom 
of the press or of speech, take private property for public uses 



CAUSES OF THE CRISIS. 61 

^^'itliout just compensation, deny the right of j)etition and tlie 
right to bear arms. It will be seen that the limitations con- 
tained in the first amendment relate expressly to Congress, and 
not to the States. 

It is very true that this mass of despotic power reserved to 
the States, is, at ^esent, restrained by the provisions of the 
State Constitutions ; but the power to amend exists in each 
State ; and by amendment these restrictions could be removed. 
And we have, especially of late, seen enough of sectional bitter- 
ness and State hostility, to give us most reasonable apprehen- 
sion for the future. 

§ 11. The general corruption of our 2nibUG men. 

The general corruption of our public men is properly at-' 
tributable to the infamous principle, that " to the victors belong 
the spoils." Under the withc^ring influence of this most vicious 
maxim, our elections. State and National, have practically be- 
come contests, more for the spoils of office, than for the success 
of great principles ; unless, indeed, it be those seven principles 
mentioned by John Kandolph of E-oanoke : '■'■five loaves and 
tvjojishesy And this mercenary struggle is not only for those 
offices necessary for the due and proper administration of public 
justice, but for mere nominal positions, created by unscrupulous 
partisans to reward their friends. To what extent the true prin- 
ciples of government, and the rights of our entire nation, as well 
as of justice, are often sacrificed by those in power, upon the 
altar of private friendship and of false pity, is shown by a state- 
ment of Col. Benton : 

" lie [Mr. Jeffei^son] told mo himself, not long before his 

death, (Christmas, 1824,) that he had failed to remove 

many who deserved it, but who were spared through the inter- 
cession of friends and concern for their distressed families." — 
(Thirty Years' Yiew, 1G2.) 

This fact does not add to the reputation of Mr. Jefterson as 
a statesman. The same wealaiess that would keep an unfit 
person in office, would lead to the creation of an office for his 
benefit. Mr. Hallam justly remarks, in substance, in his Con- 
stitutional History, that weak princes are generally under the 
control of their domestics. The want of a proper conception of 



02 CAUSES OF THE CRISIS. 

duty, and tlie failure to truly discern the best ultimate human- 
ity, will very naturally lead to the sacrifice of principle to feel- 
ing, and the rights and interests of the great and mighty future, 
to the pressing but trifling expediency of the moment. 

The really great "Washington had a right conception of the 
duties of his position, was too just to sacrifice duty to feeling, 
and rose above those temptations which lesser minds could not 
withstand. In one of his letters, he says : 

" My friend I receive with cordial Avelcome. lie is welcome 
to my house, and welcome to my heart ; but with all his good 
qualities, he is not a man of business. Ilis opponent, with all 
his politics so hostile to me, is a man of business. My private 
feelings have nothing to do in the case. I am not George Wash- 
ington, but President of the United States. As George Wash- 
ington, I would do this man any kindness in my power — as Pres- 
ident of the United States I can do nothing." 

How forcible and just is tliat sentence : " I am not George 
Washington, but President of the United States." In his in- 
dividual capacity he had the right to do any thing he could for 
his friend, but in his capacity as President he had no right to 
prostitute his ofiicial powers to gratify his mere j)ersonal feel- 
ings, or to discharge mere personal obligatious. He Avas the 
officer of the JSTation, and not the individual, George Wash- 
ington. 

But the prostituting and undermining principle, that " to the 
victors belong the spoils," is itself but a secondary cause, and 
but the legitimate result of other causes found in the theory of 
our Government. The defects in our theory which give rise to 
this vicious maxim, are the short duration of the terms of office, 
and the re-eligibility of incumbents. 

Evils which arise from defective theories of government, do 
not generally manifest themselves in their full force at once. 
They generally require time for their full maturity ; and the 
length of time required depends upon circumstances. If we 
examine the history of our Government, we shall find that the 
spoils principle was but cjradually introduced ; a very strong 
proof that it has its origin in our theory itself. 

At the time AVasliington was elected, parties had not been 
fully organized. Though the seeds of party division had been 
sown ill the Xational Convention, aud in the different State 



CAUSES OF THE CRISIS. 53 

Conventions, tliey liad not bad time to mature during the ad- 
ministration of Washington. Besides this, liis popularity was 
too decisive to admit of any successful competition. But wlien 
lie liad retired to private life, and liis successor, tlie elder Adams, 
had taken liis position, J)arty lines were strictly drawn. 

Mr. Adams agreed in liis views with "Washington, and made 
no removals from office upon purely political grounds, there 
being but nine removals during his term of four years. He was 
a candidate for re-election, but was defeated by Mr. Jefferson ; 
and there is reason to believe that his feelings were wounded 
because he was not permitted to serve for two terms, according 
to the precedent set by Washington. The contest between the 
friends of the two was very bitter ; and under the influence of 
these circumstances, Mr. Adams made some appointments, at 
the close of his term, which had the appearance of being par- 
tisan. In reference to which, Mr. Jefferson, in his letter to 
Elbridge Geny, says : 

" Mr. Adams's last appointments, when he hnew he was 
appointing counsellors and aids for me, not for himself, I set 
aside as fast as depends on me." 

§ 13. The smne subject continued. 

The election of Mr. Jefferson, it must be conceded, was sub- 
stantially a revolution of parties ; and he, therefore, found but 
few of his political friends in office.* The subject of removals 
gave him much trouble. Li a letter to Mr. Lincoln, his At- 
torney-general, and written during the first year of his admin- 
istration, among other things, he says : 

" I still think our original idea as to office is best ; that is, 

* There can be no reasonable doubt of the fact that the views of "Washington, 
Ilamilton, and the elder Adams, were substantially the same in reference to political 
questions. Hamilton was a great favorite with "Washington, having been one of his 
aids during the war, and Washington always had the utmost confidence in his judg- 
ment. The political education of Washington was defective. He had never regularly 
and thoroughly studied the science of government. But Hamilton had ; and he was, 
therefore, a thorough statesman. At the age of thirty he was a member of the Con. 
vention, and he exhibited more true capacity than any other member, if not more than 
all combined. He was the only delegate who signed the Constitution for the State 
of Xcw York ; while eight delegates signed for Pennsylvania, and four for Xew 
Jersey. Washington showed his superior natural capacity by his due appreciation of 
Haiuilton. 



64 CAUSES OF THE CKISIS. 

to dcj)cnd, for obtaining a just participation, on deaths, resig- 
nations, and delinquencies. Tliis will least affect the tranquil- 
lity of the peojple, and prevent their giving in to the suggestion 
of our enemies, that ours has been a contest for office, and not 
for principles. This is rather a slow operation, but it is sure, 
if we pursue it steadily, which, hpwever, has not been done 
with the undeviating resolution I could have wished. To these 
means of obtaining a just share in the transaction of public 
business, shall be added one more, to wit, removal for election- 
eering activity, or open and industrious opposition to the j)rin- 
ci]3les of the present Government, legislative and executive. 
Every officer of the Government may vote at elections according 
to his. conscience ; but we should betray the cause committed 
to our care, were we to permit the influence of official patron- 
age to be used to overthrow that cause." 

In reply to the remonstrance of the, merchants of JSTew 
Haven, against the removal of Mr. Goodrich, collector, he 
says : 

" "When it is considered that, during the late administration, 
those who were not of a political set were excluded from all 
office ; Avhcn, by a steady pursuit of this measure, nearly the 
whole offices of the United States were monopolized by that 
set ; when the public sentiment at length declared itself, and 
burst open the doors of honor and confidence to those whose 
opinions they approved, was it to be imagined that this monop- 
oly of office was to be continued in the hands of the minority ? 
Does it violat-e tJieir equal rigJits to assert the same rights also in 
the majority? Is it political intolerance to claim ^proportion- 
ate sliai;e in the direction of public affairs ? If a due particijxi- 
iion of office is a matter of right, how are vacancies to be ob- 
tained ? Those by deaths are few, by resignations none. Can 
any other mode than that by removals bo proposed ? " 

In the same letter, he says the total exclusion of his friends 
from office " calls for prompter corrections. I shall correct the 
procedure, but that done, return loithjoy to that state of things 
when the only question concerning a candidate shall be, is he 
honest ? Is he capable ? Is he faithful to the Constitution ? " 

Mr. Jefferson seems to have acted upon the rules laid down 
by liim ; for during his entire administration of eight years, 
there Avcre only forty-two removals. His three successors only 



, i 

CAUSES OF TILE CKISIS. 55 

made sixteen removals : Madison fire, Monroe nine, and John 
Quincy Adams two. During the terms of Mr. Monroe, party 
lines became confined and almost obliterated. It was called 
" the era of good feeling." 

In 181G, General Jackson, in his correspondence with Mr. 
Monroe, said : 

" Every thing depends on the selection of yonr ministry. 
In every selection, party and party feeling should be avoided. 
ITow is the time to exterminate the ononster called party spirit. 
By selecting characters most conspicuous for their probity, vir- 
tue, capacity, and firmness, without any regard to party, you 
will go far to, if not entirely, eradicate those feelings, which, on 
a former occasion, threw so many obstacles in the way of Gov- 
ernment ; and perhaps have the pleasure and honor of uniting 
a people heretofore politically divided. The Chief Magistrate 
of a great and powerful nation should never indulge in party 
feeling. His conduct should be liberal and disinterested, always 
bearing in mind that he acts for the whole aud not a part of the 
community. By this course you will exalt the national char- 
acter, and acquire for yourself a name as imperishable as mon- 
umental marble." 

But time brings about strange events ; and General Jackson 
himself afterwards became President, and thus had an oppor- 
tunity, in his own person, to carry out the principles he had 
laid down some years before. He, however, found himself con- 
strained by circumstances to depart from the path recommended 
to his friend, Mr. Monroe. According to the estimate of Col. 
Benton, as given in the first volume of his Thirty Yeai's' View, 
the number of removals from office, during the eight years of 
President Jackson's administration, was about six hundred and 
ninety ; leaving still a majority of political opponents in office. 
Others make the immber of removals much greater. But while 
it may be true, that a majority left in office by him Avere op- 
posed to his administration, yet it must be conceded that^ re- 
movals were generally made in the more important and influen- 
tial offices. If we compare the importance of the offices filled 
by his friends, with the importance of those filled by his op- 
ponents, the preponderance was greatly in favor of his admin- 
istration. 

The spoils principle was sedulously cultivated under the 



66 CAUSES OF THE CRISIS. 

administration of Mr. Yan Buren, and lias now become the 
fixed law of party. "We all remember tlic sad fate of General 
Harrison-. Tlie old soldier sought shelter under the roof of the 
late .Judge "Woodbury. " In God's name," said he, " a night of 
peace and quietness — I am dying for rest. The office-seekers 
are killing me." In a few days he was dead. "Whether the 
same cause had any share in producing the death of General 
Taylor it is difficult to determine. 



§ 13. The same siibject further considered. 

In the i3rogress of human affairs, great and complex ques- 
tions must, in the very nature of things, arise, from time to 
time, under every government, whatever may be its form. In 
a despotis;n, these questions will be determined by the person 
at the head of the government, with the aid of his ministers ; 
but in a representative government, these questions must be 
decided by persons chosen by the people. For this reason, all 
great questions of governmental principle or policy, (except in 
special cases,) must be discussed before the voters, and must 
lead to party divisions among the people themselves, followed 
by all the evils flowing from party spirit, unless checked or 
diminished by some compensating power. 

Tlie entire executive power of the Federal Government is 
vested in the office of President. In the very nature of execu- 
tive power, it must be a unit. For this reason, the power of 
removal from subordinate executive offices must be placed in 
the President. To require a formal trial in each particular case, 
accompanied with its doubtful result and long delays, would so 
cripple the executive power as to render it inefficient, and its 
operation unsteady. There must be many cases, perhaps a 
majority, where the necessity of removal may be palpable to the 
Presideut ; but, from the strict proof required in foi-mal trials, 
and the artful efforts of the subordinate to conceal his fault un- 
der plausible pretences, it might be very difficult to procure a 
conviction. And to give the President the power of removal, 
and then clog it with vexatious and impracticable restrictions, 
would nullify the power given. There must be force, unity, 
and energy in the Executive ; and to secure these, he must be 



CAUSES OF THE CKISIS. 57 

left witli means commensurate with tlie great ends intended by 
the creation of the office. 

Tlie office of President being elective, and for a verv sliort 
term, frequent revolutions of parties must follow. "When a 
President of a diffi?rent party comes into office, and finds, as he 
■will certainly do, the offices filled by those whose political views 
difi'er from his own, and who will very naturally be averse to 
aid him in carrying out his measures, what is he to do ? lie is 
about to introduce new measures of principle or policy, and can 
he safely trust the result of the experiment to unfriendly hands ? 
"Would it be wise to do so ? It would not. "What, then, can he 
do, but make removals upon mere political grounds ? And 
when he docs make removals upon such grounds, ho acts upon 
a principle that inevitably leads, sooner or later, to the practical 
adoption of the maxim, that " to the victors belong the spoils." 

We see the truth of this exemplified under the administra- 
tion of Mr. Jefierson. He assumed that it was the right of both 
parties to have a due share in the administration of public af- 
fairs ; and, to give this right eifect, in Ms case, it was necessary 
to create vacancies by removals for mere political reasons. But 
this right once conceded, it became, in due time, evident, that 
when one party under one administration, enjoyed all the offices, 
the other, on coming into power, had the right to all, to place 
the two upon an equality. The main principle of Mr. Jefierson 
necessarily leads to this result. 

In his letter to Mr. Lincoln, he j^i'oposed removals only for 
two causes : official delinquency, and active partisanship. But 
in case officers did their duty, and were not active partisans, 
how could the necessary number of vacancies be had, in order 
to give to each party its due share of the offices ? " Tliose by 
deaths were few, by resignations none." It was also found out, 
in the course of time, that the subordinate was placed in this 
predicament, namely : if he refused to exert himself actively for 
those in power, he was dismissed ; and if he did, he incurred 
the certainty of dismissal, if the opposite party should be suc- 
cessful. He, therefore, would most naturally take that course 
which would escape the certain and immediate danger, and risk 
that which was uncertain and remote. Under Mr. Jefi'erson's 
rule, if one President should require his subordinates to take an 
active part in elections, his successful competitor would be bound 



58 CAUSES OF THE CKISIS. 

to remove all wlio liacl done so. Though Mr. Jefferson attempted 
to 13 ut limitations to his rule, yet it was based npon the, prin- 
ciple of removal for mere political reasons ; and he was, in fact, 
the first President to act substantially upon the same rule, 
which has since very naturally become general. 

It being true, that parties must exist under every form of 
representative government, aspirants for office will necessarily 
divide themselves between the different parties : some from 
principle, most from love of office. To succeed, parties must 
be organized ; and organization requires some one organ through 
which the party can speak. Hence conventions have become 
the resort of all parties. In these conventions, aspirants are all 
required to pledge themselves, in advance, to support the nom- 
inees. 

This pledge gives the action of the convention very great force 
with the party, no matter by what means the nominations may 
have been brought about. The favorites of the party may have 
been defeated by unfair means, but still there is no practical 
remedy. To abandon the nominations, is to insure defeat. The 
offices being numerous, and the terms very short, the number 
of aspirants for present nomination, and of expectants for the 
future, must necessarily be very great. Each aspirant and ex- 
pectant has his particular friends, and those again their own ; 
and putting all these together, they form a combination too 
powerful to be successfully resisted. The defeated aspirants 
could not, Avith any sort of consistency, themselves become can- 
didates before the people, after having pledged themselves to 
support the nominees. Independent candidates may be brought 
out, professing to be of the same party ; but their motives and 
principles are subject to great doubt. The nominees and all 
their friends will accuse the independent candidates of factious 
opposition, and of a secret desire to defeat the great principles 
for Avhich tlie party contends. These self-nominated candidates, 
as they are called, cannot hope to obtain votes from the mem- 
bers of the ox)posite party ; and even those of their own party 
who are not aspirants or expectants, and who sincerely object 
to the nominees, and abhor the nefarious manner in which the 
nominations were made, are reduced to the alternative of voting 
for the nominees, or seeing the defeat of their own party prin- 
ciples. As a choice of evils, they generally, at last, vote the 



CAUSES OF THE CEISIS. 59 

ticket. Tlie result is the defeat of the independent candidates. 
In time, aspirants and expectants learn to become verj cautious 
of opposition to nominations. 

§ 14. The same subject further considered. 

Experience having shown the force of nominations when 
made, (a nomination being often equivalent to an election,) the 
greatest efforts of aspirants will be directed to that end. Those 
who are unscrupulous will, of course, not hesitate to make 
any promises or combinations deemed necessary to attain success. 
These promises and combinations can be so adroitly made, that 
they cannot, at the time, be easily detected. Aspirants of strict 
integrity and true delicacy, will hesitate to come in competition 
with the unscrupulous, because they consider themselves as 
placed in a position where they not only have not an equal 
chance of success, but where they must, if defeated, suffer the 
mortification of having been overcome by an unworthy com- 
petitor, and by unfair means. 

For example, we will suppose an aspirant for the Presidency, 
permits his name to go before a national convention. He finds 
it filled with many who are themselves aspirants for ofiice ; and 
most of those members who are not, have particular friends who 
are. He is now dependent upon them for a nomination ; but 
when elected, they or their friends will, in turn, be dependent 
upon him for aj)pointments. If they give him their support, it 
is w^ith the expectation that their services will not be over- 
looked. But whether any expectation be indulged or not as to 
'particidar individuals, all aspirants for office u]ider the new 
President, will unite in insisting that all political opponents 
shall be removed, and political friends appointed. The success 
of the party, they say, requires it. Justice to those who have 
borne the heat and burden of the day requires it. The other 
party has done it, so must we. It is the law of party. ]^o 
party can now succeed without it. 

And when the new President comes into office, he finds 
himself overwhelmed with applications for apj)ointments ; and 
though the condition of the nation be ever so perilous, requir- 
ing the most prompt and decisive action, he must still consume 
several weeks of precious time in filling offices with partisan 



60 CAUSES OF THE CHISIS. 

friends ; because lie knows tLe insatiate applicants, like the im- 
portunate woman mentioned in Scripture, may, by their con- 
tinnal coming, weary him. The only way to get an opportunity 
to attend to the most j^ressing wants of the nation, is first to 
attend to the wishes of individuals. 

The short term of the office of President, and the re-eligi- 
bility of the incumbent, keep party spirit always in existence, 
ever active and vigorous, and hosts of aspirants alM' ays in the 
field, hungry, hopeful, and clamorous for office. When a new 
President comes into office, he finds himself committed by a 
thousand pledges, (often contradictory,) and party expectations 
innumerable, and generally unreasonable. His time and strength 
are consumed in vain and useless discussions ; and his views are 
trammelled, and his official action hampered by his party con- 
nections. Inform, he is a ruler ; but in fact, he is the slave of 
office-seekers. The same circumstances that affect him, afi'ect 
his cabinet and members of Congress. They have no time to 
become statesmen ; because their time and intellects are mainly 
exhausted in studying and making political combinations, and 
in laying out plans for the gratification of their ambition or re- 
venge. This is the reason why, of late years especially, our 
public men generally have such warm friends and bitter en- 
emies. Tlie first are attached by personal obligations, Avhile 
the second are impelled by personal hate, We see the effect 
upon the members of nearly every department of the Govern- 
ment. The House of Representatives has very little dignity, 
the Senate has much degenerated of late, and the office of Pres- 
ident itself has not escaped. 

And when we go from the Pederal to the State Govern- 
ments, we find substantially the same state of things. The 
terms of the offices are very short, and the incumbents are re- 
eligible. The number of aspirants always in the field wiU ne- 
cessarily be in proportion to the shortness of the terms of office ; 
because the chances of success will occur more frequently. 
When an aspirant fails to obtain a nomination at one conven- 
tion, he has only to Avait a short time for another ; and this 
keeps him always hopeful and always on hand. For this rea- 
son, the genuine demagogue is always in favor of short terms. 

The legitimate eftect of short terms is to swell the number 
of unscrupiilous aspirants, and to increase the number of delin- 



CAUSES OF THE CRISIS. 61 

queneies in office. "When an aspirant succeeds in obtaining 
office, lie finds that it has cost him one of his two years' salary 
to reach the position ; and he is, therefore, powerfully tempted 
to steal to make up his losses. True, the power of impeachment 
hangs over him ; but he knows that this power is rarely if ever 
enforced, because his term is likely to expire before the charges 
could be investigated, if made ; and that the people, if aware 
of his delinquency, will comfort themselves with the reflection 
that his term will soon be out, and they will replace him by a 
more honest man. But the new incumbent comes into office 
under the same circumstances, and liable to the same temptations. 
Even when the officer is honest, he is often, if not generally, 
rendered weak and vaccillating. If called upon to execute the 
law upon influential men, or upon any considerable number of 
voters, he finds himself placed in this perplexing predicament. 
If he does his duty, he is almost certain to offend a sufficient 
number of his own party to defeat his renomination. When his 
name comes before the convention, every other aspirant will be 
opposed to him, because they will not wish, if nominated, to 
have their names associated with his. " He is a good fellow," 
they will say, " and has strictly done his duty ; but he is unfor- 
tunate, and cannot be elected. It is useless to nominate him. 
It would defeat the whole ticket." The result is, that the hon- 
est officer fails because he did his dut}''. Time and oft experi- 
ence have shown this to be true. The poor officer finds himself 
placed between two fires. If he does his duty, he is beaten ; 
and if he does it not, it is still the same. He therefore hesitates, 
temporizes, and makes efforts to compromise, until he finally 
renders the law itself ridiculous, and destroys, in the minds of 
the people, all due respect for it. Wo have seen the efiect of 
these causes uj^on the action of the national and State execu- 
tives, and upon the officers of both governments, except the 
judges of the Federal courts."- 

* By the second section of the second article of the Constitution, tlie President is 
made commander-in-chief of the militia of the several States when called into the 
actual service of the United States ; but by a provision of the eighth section of the first 
article, the power to appoint the officers is reserved to the States respectively. 

The idea of giving the chief command to the President, and at the same time leav- 
ing it in the power of the States to appoint the officers he is required to command, 
would seem incompatible with due subordination and efficiency. "We now see the 
efifects of this State power of appointment in the fact that so many mere politicians are 



G2 CAUSES OF THE CKISIS. 

Tlie influence of party spirit is potently felt in ail tlio i amiii- 
cations of society, and lias most materially affected the adminis- 
tration of justice in our country. Yery few men of wealth or 
of popularity have been convicted of murder, or other serious 
offence, in the United States. Hamilton, a wealthy man, was 
convicted and executed some years ago in Kentucky, for the 
murder of Dr. Sanderson, another wealthy man ; and Dr. Web- 
ster, a man of literary reputation, suffered in Massachusetts for 
the murder of Dr. Parkman, who was a wealthy and prominent 
man. But the instances have been few ; and none, so far as 
known, where the murdered victim was an obscure individual, 
without friends or influence. Of politicians, no instances of 
conviction are remembered. Partisan influence is powerful ; 
and of bank and other corporation delinquents, there is not one 
in a hundred ever punished. Escape is almost, if not entirely, 
universal. 

Tlie effect of the short terms of office, and of the re-eligibility 
of incumbents, is plainly seen in the general licentiousness of 
the press. All parties, cliques, and prominent aspirants for im 
portant positions, have their organs, which are under their con- 
trol, and but reflect the party bitterness and personal feelings 
of those who dictate the contents and tone of their editorials. 
These causes have led to a vast increase in the number of news- 
papers ; but in proportion as the number increases, their char- 
acter depreciates. 

§ 15. jin elective judiciary. 

The last conservative element in the State Governments has 
been destroyed by making the judiciary elective. Since this 
has been done, candidates for seats uj^on the bench arc nomi- 

appointed to the most important military positions. Tliis was to have Ijccu expected. 
The Governors in wliom the power of appointment is vested, hold their offices but for 
short terms, are eligible for other terms, and of course find it hard to rise above their 
party friendships and political associations. They will not easily forget the services of 
those politicians to whose efforts they owe their own positions, and upon whose assist- 
ance they rely for further promotion or continuance in office. 

But the deplorable result is, that the army'must bleed, and the country suffer, for 
the want of military capacity in these officers. The field of battle is no place for mere 
political combinations. Nothing but genuine merit can bear the test of that stern and 
rigid trial. 



CAUSES OF THE CKISIS. 63 

nated by political conventions ; and witliout sucli nomination, 
no candidate could succeed, thougli lie possessed tlie character 
and qualifications of Chief Justice Marshall. 

Tlie evils of such a theory are not well understood by the 
great mass of voters, and cannot be stated but in part here. 
The essence, however, of all the objections against it, consists in 
taking judicial questions from the proper forum, and, in 2JraGti- 
cal effect, submitting them to the discussion of a crowd. The 
evils of the theory have not yet fully appeared ; but in the 
jDrogress of time, they will swell to gigantic proportions. 

The first result will be to place political demagogues upon 
the bench ; men who, during the canvass, will freely intimate 
to certain influential parties their opinions U23on certain exciting 
and important judicial questions, in reference to which there 
exists a great diversity of interests in the community. And 
when the candidate becomes the judge, he is still eligible for 
re-election, always an aspirant upon the bench, and always elec- 
tioneering. A case comes up before him, where the law is 
clearly one way, and the opinions and interests of the masses 
the other way. How is he to decide ? and how will a dema- 
gogue decide ? If he decides against public opinion, he loses his 
seat. The question is one in which he is directly and personally 
concerned ; and he is practically made a judge in his own case, 
because the practical result, to Jthn, is the same. In sustaining 
public opinion, for the time he sustains his own immediate 
interests ; but by the time the next election comes around, 
public opinion has changed, and he must change with it. 

Tlie theory of an elective judiciary is studiously designed to 
subject judges to the greatest temptations, and their strict integ- 
rity to the severest trials, without any practical or efiicient 
check ; for when a man without integrity has public opinion to 
sustain him, he feels pretty safe. The evils of the theory would 
be manifest to all the world, if the true state of facts could al- 
ways be known. Suppose, for example, a candidate for a seat 
upon the bench should pledge himself, in advance, to decide 
certain judicial questions in a certain way ; and suppose, after 
election, a case involving the principle should come before him, 
and the lawyer upon the opposite side should propose to discuss 

the question. The judge, if candid, should say : " Mr. , I 

cannot hear argument upon this question, because it would be 



64 CAUSES OF THE CRISIS. 

idle to do so. I liave pledged myself, in advance, to my con- 
stituents, to decide this question against you, and I nmst keep 
my pledge to them, though it may be true that you are in the 
right, and could plainly make it appear. But as the matter 
710W stands, this Court does not, in fact, decide cases itself, but 
simply records the judgments of public opinion for the time 
being. I am sorry for you and your client ; but I love myself 
better than I love the law of this case, and I could not have 
been elected unless I had made the pledge I did ; and I was 
bound to be elected. That was the great end for which I 
struggled." * 

* The history of England shows conclusively that the administration of justice never 
can be pure until the judges are made independent. So long as the judges of the 
English Judiciary were removable by the crown, they were its slaves, with a few noble 
exceptions. During the reign of Henry VIII., Cromwell " asked of the judges whether, 
if Parliament should condemn a man to die for treason without hearing him, the attain- 
der could not be disputed ? They answered that it was a dangerous question, and that 
Parliament should rather set an example to inferior courts by proceeding according to 
justice. But being pressed to reply by the king's express commandment, they said 
that an attainder in Parliament, whether the party had been heard or not in his 
defence, could never be reversed in a court of law." It is remarkable tliat Cromwell 
was himself the first victim. — (Hallam's Con. His., 28, 29.) 

As to the judges under Elizabeth, Mr. Hallam says : 

" I have found it impossible not to anticipate, in more places than one, some of 
those glaring transgressions of natural as well as positive law, that rendered our courts 
of justice in cases of treason little better than the caverns of murderers. "Whoever 
was arraigned at their bar was almost certain to meet a virulent prosecution, a judge 
hardly distinguishable from the prosecutor except by his ermine, and a passive, pusil- 
lanimous jury." — (Con. His., 138.) 

Under James I. the judges were no better. " The courts of justice, it is hardly 
necessary to say, did not consist of men conscientiously impartial between the king and 
the subject ; some corrupt with hope of promotion, many more fearful of removal, or 
awe-struck by the frowns of power." — (Id., 184.) In the case of Peacham, " the king 
directed Bacon previously to confer with the judges of the King's Bench, one by one, 
in order to secure their determination for the cro'ivn." The prisoner was convicted, 
but died in prison. — (Id., 198.) 

In some few instances, constituting mere exceptions to the general conduct of the 
judges, they manifested a noble spirit. 

" They unanimously declared, when Charles I. expressed a desire that Felton, the 
assassin of the Duke of Buokingliam, might be put to the rack in order to make him 
discover his accomplices, that the law of England did not allow the use of torture." 
—(Id., 243.) 

In the case of Hampden, there were two of the twelve judges who manifested a 
most intrepid spirit, namely : Ilutton and Croke. Of the latter, Mr. Hallam says : 

" Croke, whose conduct on the bench in other political questions was not without 
blemish, had resolved to give judgment for the king, but was withheld by his wife, 



CAUSES OF THE CRISIS. 65 

But even "vrlien tlie judge is immovable, and above the in- 
fluence of personal considerations, and always ready and willing 
to lose his seat rather than stultify himself, he is placed in a 
very delicate and painful position, when his motives are open 
to plausible and continued suspicion and reproach. The public 
newspaper press is generally edited by men who have a little 
legal learning, (a dangerous thing when just enough to mislead,) 
and will discuss, in their columns, the decisions of the courts, 
and condemn or approve, as the supposed opinion of their read- 
ers, or their own inaccurate judgments may dictate. Every ex- 
traneous and outside influence is brought to bear upon the Court, 
And not only so, but the judge must necessarily employ much 
of his time in making political combinations, or he must fail to 
receive a renomination by the convention of the party to which 
he himself belongs. Unless he do so^^his opponent, not being 
on the bench, and against whose judicial opinions nothing can 
be said, because of them nothing is publicly known, (though, 
known to the influential few,) will have greatly the advantage 
over him in the convention. All his opponent has to do to de- 
feat him, under such circumstances, is to spend about six months' 
time in bringing out, in difi'erent counties, his own particular 
friends, as aspirants to seats in the convention. 

The theory of an elective judiciary not only ultimately, as a 
general rule, excludes the best men from the bench, and puts 
political demagogues in tlieir places, but its tendency is to de- 
grade the bar itself. Although district courts are but subordi- 
nate tribunals, the judges of these courts have it in their power 
to favor or oppress particular attorneys to a great extent. 
When an attorney becomes unpopular with the court, he loses 
his practice, because parties litigant will not employ him at the 

who implored him not to sacrifice his conscience for fear of any danger or prejudice to 
his family, being content to suffer any misery with him, rather than to be an occasion 
for him to violate his integrity." — (Id., 251, note.) 

This noble woman, greater than her husband, should be had " in eternal remem- 
brance." 

t 

As to the judges during the reign of Charles 11.," Never were our tribunals so dis- 
graced by the brutal manners and iniquitous partiality of the bench as in the latter 
years of this reign." — (Id., 411.) 

The independence of the judges was secured by the Act of Settlement. Since then 
" no judge can be dismissed from office, except in consequence of a conviction for some 
offence, or the address of both houses of Parliament, which is tantamount to an Act of 
the Legislature."— (Id., 697.) 
5 



66 CAUSES OF THE CKISIS. 

risk, real or imaginary, of losing their cases. Tliis state of 
things has a strong influence npon many members of the pro 
fession ; and hence they become obsequious flatterers and sup 
porters of unworthy aspirants. For example, two men are as 
pirants or candidates for the bench. A is a man above the in 
fluence of prejudice or revenge ; but B is a man who nevei 
forgets or forgives an opponent. The members of the bar have 
to choose between them. The vote is likely to be a close one 
Each member of the bar puts this dilemma to himself : " If ! 
vote against A, and he should be elected, I can lose nothing 
but if I oppose B, and he should be elected, he will never for 
give the act, though he may never allude to it." Such consid 
erations will have their influence with many lawyers. 

It may, with truth, be said, that the members of the bar ar( 
almost, if not quite, universally opposed to an elective judiciary 
The writer has never met a lawyer of respectable attainment 
^hat did not decidedly condemn the elective theory ; nor has h( 
met anywhere with many intelligent men of any class or pro 
fession, that did not agree with the bar in this view. Tin 
opinion of the bar, upon a question of this character, is justb 
entitled to great weight. If the members of the profession d( 
not understand the science of government, they understanc 
nothing. As a class, they have every reason for sustaining j 
just, speedy, and economical administration of justice. Errors 
delays, and extravagant costs, keep parties out of court, and an 
clearly an injury to the profession. The members of the ba 
have, therefore, every professional, honorable, and just motiv( 
to sustain 07ilt/ the best mode of choosing judges. The highe: 
and purer the administration of justice, the more honorable anc 
profitable to the noble profession to which they belong. 

The most intelligent and conservative men in the natior 
have always known that our theory was but an experiment. 
They have, therefore, watched its progress with deep concern : 
and, most imhappily, they have had no cause to put aside theii 
doubts and fears. The theory has not grown more conservative, 
(as it should have done,) in proportion as our population in- 
creased and our territory extended ; but has rapidly and con- 
tinually grown more and more radical. It seems, in its very 
nature, to be especially adapted to create and foster mere poli- 
ticians, while it is death to true statesmen, who, as a genera] 



CAUSES OF THE CRISIS. 67 

iile, are left in private life. And these increasing evils seem 

admit of no remedy. Tlie j^eople themselves are so hampered 
.nd carried away by party spirit, that appeals to them are very 
arely successful. True, they occasionally, at long intervals, 
irouse themselves, and, in their short-lived wrath, hmd the mere 
)olitician3 from power ; but these spasmodic efforts readily ex- 
laust themselves, the waves of public indignation cpiickly sub- 
ide, and things soon resume their accustomed state. It is like 
astiug a stone into a stream, which act occasions a temporary 
)ubblc, and then the current flows on again as ever.* 

And this state of things is not so much the fault of the peo- 
)le, as of the theory itself. Men will differ in their views of 
)olitical questions, and must^ of necessity, divide themselves 
nto political parties ; and when once so divided, regard to prin- 
iple and consistency will force even the unaspiring masses to 
'ote for persons representing their own views. Hence they are 
ibliged, by stress of circumstances, to resort to party machinery ; 
,nd when they do this, they are compelled, in due time, to be 
ontrolled by demagogues. " Eternal vigilance," said Mr. Jef- 
erson, " is the price of liberty ; " but this " eternal vigilance " 
a attending, so often, both fTimary and final elections, is a 
ostly effort to the toiling millions ; and though " eternal^'' it is 
Lot, in itself, competent to detect the secret springs by which 
onventions are practically moved. 

* Perhaps no instance in our history more forcibly shows the overpowering influ- 
Qce which even pubHc prejudice will have over political men under our theory, than the 
lelancholy case of Alexander Hamilton. Col. Benton justly says : " Hard was the 
ite of Hamilton." It was hard, indeed ; not so much for the fact that he fell in the 
rime of life, but that he died in consequence of deliberately committing an act which 
is conscience and judgment condemned ; and this under the specious pretence of 
xpediency. He was utterly opposed to duelUng, and yet he fought. In his own 
^ords, his reasons were these : 

" The abihty to be in future useful, whether in resisting mischief or effecting good, 

1 those crises of our public aff:iirs which seem likely to happen, would probably be 
^separable from a conformity with prejudice in this particular." 

It is a great misfortune that a great man, in an enlightened age, should reason in 
bis wa)'. That evi! should be done that good may come of it, is a short-sighted view 
f principle, as well as of consequences. We can well imderstand how an individual 
fho regards the practice of duelling as correct in itself, can be engaged in a duel. He 
cts consistently ; but for a man deliberately to do wrong, simply to satisfy others, 
hows g eat weakness. Is a community which requires a man to violate his conscien- 
ious principles worthy to be served by a just man ? A great and good man should be 
ontent when he is in the right, whether others think so or not ; and no man should 
ir can be happy, when he violates his own conscience. 



68 THE ULTIMATE EEaiEDi. 

CHAPTER m. 

, THE ULTIMATE EEMEDY. 

§ 1. The iiUimate remedy stated. 

A WEiTEK wIlo objects to tilings as tliey are, sliould suggest 
a remedy for tlie alleged evils to wliicli his objections refer. To 
simply complain, witbout being able to point out any remedy, 
is to gratify a mere fault-finding disposition ; and tliis is doing 
an idle, if not a vicious tiling. Tlie writer will endeavor to 
comply witli tbe reasonable duty incumbent upon those who 
make objections. 

In assigning the alleged defects of our governmental theory, 
as the fundamental causes of the present crisis in the affairs of 
the Nation, the proposed ultimate and permanent remedy has 
been already incidentally suggested. This remedy consists in 
removing the causes themselves ; and to do this, the theory of 
the Government must be thoroughly and radically amended. 
Partial and temporary remedies are deceptive. Tliey may give 
relief for a time, only to be followed by evils more distressing 
than ever. We must go back and begin at the beginning, and 
profit by our later and more dearly-bought experience. It is a 
rule of logic, that errors should be corrected in the places where 
they occur. With a fresh, ample, and fertile territory, and, 
comparatively, a sparse population, and, consequently, a peo23lc 
generally free from want, and, for that reason, virtuous and in- 
dependent, our theory succeeded very well at the beginning. 
But as, in the national progress of things, our circumstances 
approached the condition of the populations of the Old World, 
the practical defects of our theory became more and more ap- 
parent." 

* Malthus assumes these positions as true : 

" The increase of population is necessarily limited by the means of subsistence. 

" Population invariably increases when the means of subsistence increases, unless 
prevented by powerful and obvious checks. 

" These checks, and the checks which keep the population down to the level of the 
means of subsistence, are moral restraint, vice, and misery. 

" Corn countries are more populous than pasture countries, and rice countries more 
populous than corn countries." — (Malthus on Population, Tol. i., 532-4.) 



THE ULTIMATE REMEDY. 69 

The tlieoiy slioiikl be amended in these three general re- 
spects : 

1. It should be made more simple. 

There is no governmental theory in the world so complex as 
onr own. This is agreed to by all our jurists and statesmen. 
All avoidable complexity should be excluded from the theory. 
It should be made as simple as the great and various purposes 
of government will allow. Government, at best, is a vast and 
complex machine ; but like the machinery of a great steamship, 
though complex, it should be harmonious in its operations. 

2. It should be made more conservative. 

The acute and profound Mons. De Tocquevillc, in his able 
work upon America, very justly says : 

" In conformity with this principle, America is, at the pres- 
ent day, the country in the world where laws last the shortest 
time."— (p. 278.) 

Few countries have suffered so much from hasty, change- 
able, and excessive legislation as our own. We have not, in 
our rushing mad pursuit of objects before us, stopped to secure 
the steps already taken. Majorities alternate in our country as 
elscwbere ; and in our theory there are no efficient checks upon 
the interests and passions of mere majorities, for the time being. 
Tlie same elegant writer remarks upon this unchecked power 
of present majorities, as follows : 

" The majority, therefore, in that country exercise a prodi- 
gious actual authority, and a moral influence scarcely less pre- 
ponderant ; no obstacles exist which can impede, or so much as 
retard its progress, or whicli can induce it to heed tlie com- 
plaints of those whom it crushes upon its patli. This state of 
things is fatal in itself and dangerous for the future." — (p. 277.) 

3. It should be made stronger. 

The Federal Government is too weak, and there are too 
many restrictions upon its powers, in view of the extent of our 
country, its varied productions, antagonistic interests, and differ- 
ent domestic institutions. There is' no government less worthy 
of the respect of mankind, and of the obedience of those whom 
it mocks with a farcical rule and protection, than that whicli is 
impotent to accomplish the very ends for which government is 
alone instituted. A strong government may oppress its people ; 



70 TUE ULTIMATE REMEDY. 

but it, at least, gives tliem protection as agaiust foreign en- 
emies, and as against each other. 

" Tlie circumstances," says Hamilton, " that endanger the 
safety of nations are infinite ; and for this reason, no constitu- 
tional shackles can wisely be imposed on the power to which 
the care of it is committed. Tliis power ought to be coextensive 
with all the possible combinations of such circumstances ; and 
ought to be under the direction of the councils which are ap- 
pointed to preside over the common defence." 

This was said in reference to the power " to raise armies ; to 
build and equip fleets ; to prescribe rules for the government 
of both ; to direct their operations ; to provide for their sup- 
port," In reference to the extent of our territory, he said : 

" This, at all events, must be evident, that the very diffi- 
culty itself, drawn from the extent of the country, is the strong- 
est argument in favor of an energetic government ; for any 
other can certainly never ]3resei*ve the union of so large an em- 
im-e:'— {Federalist, l^o 23.) 

It is very true that these observations of Hamilton were 
made in answer to the objection, that too much power had been 
conferred upon the Federal Government by the Constitution. 
But when it is remembered that he Avas decidedly in favor of a 
much stronger form of government, his remarks may justly be 
taken in a more general sense. The heading of the number from 
which these extracts are taken, is in these words : " The neces- 
sity of a government, at least equally energetic with the one 
proposed." 

The great end to be accomplished, is to combine strength in 
the Government with security and liberty in the governed, so 
far as this can be done. To accomplish this end, restrictions 
upon the powers of government are not generally so safe, and at 
the same time efficient, as their proper distribution among dif- 
ferent departments, which act as checks upon each other. " I 
repeat here," says the same great statesman, " what I have ob- 
served in substance in another place, that all observations, 
founded upon the danger of usurpation, ought to be referred to 
the composition and structure of the government, not to the 
nature and extent of its i^o^xcvs "—{Federcdist, l^o. 31.) 



THE ULTIMATE EEMEDY. 71 

§ 2. Tliere should he no State sovereignty. 

Tlie States sliould be strictly subordinate corporations, and 
only permitted to exercise such powers as may be allowed by 
Congress. In other words, they should possess no sovereignty, 
in fact or iu theory, and should bear to the Government sub- 
stantially the same relation that Territorial governments now 
bear to that of the Union. The acts of their legislatures should 
be (m\:j 'prhna facie valid, and be subject to the negative of 
Congress. The Governor of each State should be appointed by 
the President, by and with the advice and consent of the Senate, 
and should hold his office at the pleasure of the President. ■ He 
should have a qualified negative upon the bills of the State 
Legislature, which should be composed of a Senate and House 
of Pepresentatives. Members of the State Senate should be 
elected by the people of their respective senatorial districts, and 
should hold their positions for life, subject to the right of ex- 
pulsion by their own body ; and members of the House of Pep- 
resentatives should be elected by the people of their respective 
counties, and for a term of four years. The appointment of all 
subordinate executive and ministerial State officers should be 
vested in the Governor, except those of municipalities. 

Such an amendment would relieve our theory of that po- 
litical monster — a divided sovereignty. Every citizen would 
then lylainly know the government to which his allegiance was 
rightfully due. He would not then be placed in the painful and 
illogical predicament, of having to love and serve two different 
supremes, of contrary wills. , He could not then, as now, by the 
same act, commit two different offences ; and thus be subjected 
to double punishment. It would then be out of the power of 
fathers to teach their sons, and of politicians to persuade the 
people, that their superior allegiance was due to the State, 
Pebellion would then be plain^ umnista'ka'ble rebellion ; and 
not, as now, a forcible attempt upon plausible grounds, to sus- 
tain alleged Constitutional rights. Tlie theory of our Govern- 
ment would then be simple. It would be harmonious in theory 
and practice. 

The vast amount of time heretofore consumed, in all the 
Courts and Legislative Assemblies, State and National, and by 
our law wi'iters, politicians, and statesmen, in discussing the 



72 'nm ULTIMATE REMEDY. 

multiplied and peq^lexing questions, continually arising, re- 
garding tlie respective constitutional powers of the Federal 
and State Governments, would then be saved. Any one who 
will examine the subject, will see the amount of labor, time, and 
intellect heretofore consumed in these discussions. Should the 
present theory continue half a century longer, it is difficult to 
conceive how Congress and the Federal Courts could possibly 
despatch the business before them. This evil has become one 
of great magnitude. ^ 

This illogical attempt to divide sovereignty, has mainly 
given rise to the bitter and intemperate discussions in Con- 
gress, so injurious to our feelings as a people, and to our honor 
at home and abroad. It has also led to the most deplorable 
results among the people themselves. Their bitterness is but 
the reflection of that engendered in Congress and in the State 
Legislatures. Grievances, real or imaginary, will arise from 
time to time, under the best, and the best administered govern- 
ment in the world. Even measures substantially just under the 
circumstances, will bear harder upon one .class, or upon one 
section, than upon ^ another. Tliese partial evils cannot be 
avoided by human wisdom. 

This being true, the misfortune of our theory is, that these 
evils can generally be plausibly imputed to violations of the 
Constitution — to encroachments upon State rights — to an inva- 
sion of State sovereignty. And when a citizen is once convinced 
that the Constitutional rights of his State have been invaded, 
he feels indignant ; and when satisfied .that this invasion has 
been deliberate, and continued for any considerable period of 
time, and that it will, in all probability, become permanent, all 
his energies and resentments are aroused, his soul is stirred 
within him, and his hatred of his supposed oj^pressor becomes, 
in time, so intense, that he is ready to die a martyr to that 
which ho believes to be the right. 

Tliese temptations to forcible resistance, under the name of 
defending the Constitution, should be removed. "\Ye should 
have a governmental theory, simple and clear enough in its 
main features — those that arc fundamental — so that the good 
sense of every man can understand, at least, what officers he is 
bound to obey. "We should not be left in doubt as to our right- 
ful master. We are ready to give due obedience. It is both 



THE ULTIMATE KElMEDy. 73 

our interest and our duty. Our judgments and our hearts tell 
us so. We are willing and anxious to be governed ; because 
yvG regard legitimate government, not as a curse, but as a bless- 
ing. But give us only one master. "We cannot have and serve 
two. 

§ 3. The Executive Poioer. 

Tlie Executive power of the Nation should be vested in a 
President, who should be a native citizen of the United States, 
and be elected by a direct vote of the people. He should hold 
his office for a term of twenty years, be ineligible for a second 
term, incapable of holding any other office, and subject to re- 
moval by impeachment. All officers appointed by him, except 
judicial, should hold their offices during his pleasure. He 
should have, besides, the right to demand the written opinions 
of all heads of departments, a Cabinet to consist of the Secre- 
taries of State, of the Treasury, and of War, and the Attorney- 
general, who should be entitled to seats in the House of Kepre- 
sentatives, but without the right to vote. . In addition to the 
other powers conferred upon him by the present Constitution, 
and those mentioned above, he should have the power to de- 
clare martial law, and to suspend the privilege of the wi'it of 
Jicibeas coi'pus^ for a limited period, during the recess of Con- 
gress. 

It maybe objected, and with much reason, that an elective 
Executive can never entirely escape from the influence of those 
aspirants for office under him, to whose efforts he is mainly in- 
debted for his own elevation to power ; and that an hereditary 
Executive is the only one that can avoid the influence of party 
spirit, as he comes into office without pledges or obligations, 
either expressed or implied. It may also be said, that an elec- 
tive theory is more apt to give rise to frequent civil wars. 

It must be conceded that both theories are liable to some 
objections. The theory of an hereditary Executive is certain to 
place in power a greater number of incompetent and unworthy 
persons. The history of France, England, and other monarchies 
will show, that the hereditary theory does not lessen the dan- 
gers of civil war. Frequent and bloody civil wars have oc- 
curred in struggles for the succession. Questions of legitimacy 
often arise, exceedingly difficult to determine. Governments 



7i THE ULTIMATE EEMEDY. 

Lave been perplexed, and nations wasted, becanse it could not 
be certainly known, wlietlier a particular marriage was legal or 
otherwise. If legal, one claimant would be the rightful heir to 
tJie crown ; if illegal, then the other. These discussions are often 
of a very painful and indelicate character ; and every correct 
theory of government should give no cause for them. 

Besides, the danger of civil war, under the theory of an 
elective Executive, arises mainly from the fact, that the incum- 
bent is eligible for another term. lie being a candidate for 
another term, and being in possession of the office, and in com- 
mand of the army and navy, and these being large in proportion 
to the entire j)opulation, and the race being sufficiently close to 
give rise to plausible doubt as to which competitor is really en- 
titled to the office, it is easy, in such cases, to make charges of 
fraud in the election ; and, as fraud vitiates every thing, a plaus- 
ible case may be made out by the incumbent, who will not 
hesitate to use his power over the army and navy, and over his 
party friends, to retain power. But when the incumbent is 
plainly limited to a single term, this danger cannot arise from 
any defect in the theory. It would be a case of ])lain usur- 
jyation. 

A very grave and serious objection to the theory of an he- 
reditary Executive is, that the people are often made to bleed 
and suffer, simply to gratify the pride and personal resentment 
of the monarch. Tlie pages of history are full of such instances. 
Eoyal families necessarily connect themselves with those of other 
countries by marriage, and thus form family alliances, often 
very detrimental to their own governments. 

It will be obvious, upon reflection, that the long term of the 
Presidential office, will avoid most of the evils of the present 
theory. It must be conceded, that candidates for that office 
would most likely be nominated by conventions, as heretofore ; 
but the futility of requiring asj)irants to commit themselves so 
long in advance, to any particular line of policy, must be ap- 
parent. The long term would more likely lead to the selection 
of better men. Tlie new President, when once in power, is 
placed in an independent position, has no hopes of future pro- 
motion himself, and no plausible excuse for sweei^ing removals, 
for mere political reasons. The long term before him will allow 
him to wait for vacancies occasioned by deaths, resignations. 



THE ULTIMATE REMEDY. • 75 

and removals for cause. The operation of the executive power 
■would be steady, energetic, and consistent. The President 
M'ould have time to deliberately adopt and successfully carry 
out his measures. The power of impeachment vrould not only 
be the more promptly enforced, but the fear of forfeiting his 
long term of office, would deter even an incumbent of doubtful 
integrity from any gross violation of duty. Tlie theory of long 
terms of office has these very decisive advantages : 1. It gives 
the incumbent ample time to make himself thoroughly ac- 
quainted with the duties of his position ; 2. It removes the 
temptation to delinquency ; 3. It is a powerful check upon it. 

A President placed in that secure position would have noth- 
ing to fear while he did right. He would have ample time and 
opportunity to make himself a true statesman, and every motive 
to lay a solid foundation for deserved and enduring fame, in a 
vigorous, honest, and wise administration. The mere passions 
and excitements of the hour would not often influence his action. 
Placed above party trammels, and beyond the reach of party 
and sectional prejudice, his administration would not only be 
good in itself, but it would command the confidence and respect 
of the people, from the absence of all motive to do wrong. Un- 
der the practical operation of such a theory, we should have 
every reason to expect a long succession of illustrious men in 
the highest office in the world. 

It is a matter of great practical importance, that the ordi- 
nary advisory body of the Executive should not be too large ; 
because it is not safe to intrust the keeping of Cabinet secrets to 
many persons ; and it is not convenient to assemble and consult 
so many as often as may be required. Even large advisory 
bodies move slowly. It is also of great practical importance 
that members of the Cabinet should be allowed seats in the 
House of Eepresentatives, so that the President may propose 
his measures through them, and sustain those measures by ar- 
gument and explanation. In legislating for a great nation, time 
is very important, and moments become valuable. Every facil- 
ity, therefore, for expediting business, and for the conviction 
and prevention of errors in legislation, should be adopted. Tlie 
members of the Cabinet, being familiar .with the views of the 
President, could at once, in many cases, afford that information, 
which it now requires resolution of inquiry to obtain. So, the 



76 THE ULTIMATE REMEDY. 

members of tlie Cabinet, being also acquainted "with the prac- 
tical operation of tlie laws, tlie business of the principal depart- 
ments, and the existing state of legislation, would be more com- 
petent to draw up bills for many purposes, than the regular 
members themselves. Many of the perplexing errors now found 
in Acts of Congress would be thus avoided. There is nothing 
more difficult than to frame a bill upon a complex subject, and 
yet have the bill full, clear, concise, and consistent. 

In a country so extensive and diversified as ours, it is im- 
portant to the national safety, and the best ultimate humanity, 
that the President should have the power to declare martial 
law, and to suspend the privilege of the writ of habeas corpus, 
in cases of invasion, insurrection, rebellion, and for a limited 
time, during the recess of Congress. The late distressing events 
in our country, have shown the wisdom and necessity of such a 
provision. There is no means more efficient, and at the same 
time more humane in suppressing insurrection or rebellion, than 
the power of promptly arresting and imprisoning suspected in- 
dividuals. It separates the leaders to whom the secrets of the 
plot are alone confided, confuses their plans of operation, dis- 
pirits their adherents, and often prevents the dire necessity of 
shedding blood. In the midst of military operations, there is 
no time to issue writs of habeas corpus, and calmly investigate 
the alleged causes of imprisonment. ISTo doubt mistakes and 
abuses must and will occur, and innocent j)ersous sufter for a 
time. But when the peace and safety of the government are 
at stake, individuals had better suft^er temporary wrong, in some 
cases, than that a greater evil should befal an entire community. 
The maxim of the law, that it is better that ninety-nine guilty 
should escape, than that one innocent person should suffer, is 
often carried too far, and is not applicable to the extreme case 
where the nation is in peril. 

It is very true that the English people are so jealous of their 
personal liberty, that the power to sus^^end the privilege of the 
writ of habeas corpus is alone reserved to Parliament. (1 Black. 
Com. 136.) But the reasons for this restriction upon the powers 
of the crown would not exist with us. Tlie king holds his crown 
for life, with succession to Ids heirs, and is not criminally re- 
"^ponsible for any act vjhatever. Tlie English Constitution 
leaves him without sufficient checks, and with many induce- 



THE ULTIilATE EEMEDT. 'TT 

ments to increase Lis powers. In tlie liands of the cro'^vn, the 
power of suspension would be higlily dangerous. But the Pres- 
ident would hold his office for a single term, without succession, 
and subject to im^icachment. lie would, therefore, have no 
motive for the wilful abuse of the power, and the danger of im- 
peachment would operate as a powerful check upon him. 

There can be no doubt that, under the existing Constitution, 
the power of suspension is alone vested in Congress. This is 
conclusively shown by Chief Justice Taney, in his opinion de- 
livered in the late case of ex parte John Merryman. As a judge, 
the Chief Justice could only declare the law as it is / not as, in 
his opinion, it should l>e. But the necessity for the existence 
of this power in the President, during the recess of Congress, 
has led to violations of the present Constitution by some of our 
military officers, whose acts have been overlooked upon the 
ground of necessity. But the plea of necessity is a dangerous 
precedent to indulge under a government of limited powers. 

It may be said by some, that it would be better for the 
President to hold his office during good behavior, rather than 
for the long and fixed term of twenty years. But this is objec- 
tionable, because it makes the periods of election irregular. 
The people should always know with certainty, and long in ad- 
vance, when they are to exercise the j)rivilege of electing their 
President. They would thus have ample time for discussion 
and reflection. Besides, it would become necessary that the 
vacancy should be filled temporarily, until the result of the 
election could be known ; and this would increase the interrup- 
tions in the administration of this department, and render its 
policy more fluctuating and unsteady. 

The A^ice-President should possess the same qualifications, 
and be elected at the same time, and for the same term, as the 
President. The Vice-President should possess the powers con- 
ferred upon the office by the present Constitution. Provisions 
for filling vacancies in the office of President and Yice-President 
should be the same as at present. 



§ 4. The Legislative Power. 

The Legislative power should be vested in a Congress, to 
consist of a Senate and House of Eepresentatives. Members 



T8 THE ULTIilATE EEMEDY. 

of the Senate should be chosen in the mode now adopted, bnt 
should retain their seats for life, subject to expulsion by their 
own body, and should be incapable of holding any other posi- 
tion. Members of the House should be elected by the people 
of their respective districts for the term of four years. The 
Senate and House should possess the same relative powers as at 
present. 

A Senate thus composed would b^ the most dignified, illus- 
trious, and justly conservative body in the world. The mem- 
bers would have ample time and opportunity, and every induce- 
ment, to make of themselves true statesmen. Their attention 
would not be occupied with conflicts between duty and ambi- 
tion. They would have but one thing to do, and would be be- 
yond the reach of passion, prejudice, or personal interest. 
Tlieir fame could only be based upon real merit. JSTo political 
combinations could add any thing to their reputations. To be 
a life-long and distinguished member of such a body would be 
ample to gratify reasonable ambition. 

Such a body would be superior to the English House of 
Lords, in several material respects : 1. The House of Lords 
represents only certain classes of the conservative element of 
the nation, while the Senate would represent all. 2. The House 
of Lords, as a body, would be inferior in capacity, owing to the 
elements of which it is composed. The hereditary peers are not 
generally distinguished for ability. The same is true of the 
Bishops, whose profession does not make them practical states- 
men. 

The provision that renders Senators incaj^able of all further 
promotion, is a very important one, and would not only exclude 
all topics of personal dispute, but would give the action of such 
a venerable body the most deserved weight Avitli the people. 
There being no motive of interest or feeling to sway the judg- 
ment of Senators, (a majority of whom would, at all times, 
230ssess ample character, experience, and capacity,) there could, 
in most cases, be no plausible ground for objection to their ac- 
tion. Every man in the nation would have just reason to re- 
pose confidence in such a body of statesmen. The time of that 
body would not be consumed, as now, in discussing the political 
pretensions and antecedents of aspiring Senators for the Presi- 



THE ULTIMATE REMEDY. 79 

dencj, and often in fierce personal quarrels. Tlie cause being 
removed, the nielanclioly effect would cease. '^^ 

The members of the House of Eepresentatives ^vould be fresh 
from the people, and ■would, therefore, represent the progressive 

* The history of the proceedings of the Senate will show a number of cases where 
Senators were evidently influenced, to a great extent, by personal ambition. Perhaps 
the most noted case was the rejection of Mr. Van Buren as minister to England. Col. 
Benton, in his Thirty Years' View, gives the secret history of that rejection ; according 
to which account the leading motive of those who voted against the nomination was the 
desire to kill off a competitor for the Presidency, who was in the way of Messrs. Clay, 
Calhoun, and Webster. " Rejection of the nomination was not enough — a killing oft" 
in the public mind was Intended ; and therefore the unusual process of the elaborate 
preparation and the intended publication of the speeches." All the speakers abjured 
all sinister motives. " The acccomplished Forsyth complimented, In a way to be per- 
fectly understood, this excess of patriotism, which could voluntarily inflict so much 
self-distress for the sake of the public good ; and I, most unwittingly, brought the 
misery of one of the gentlemen to a sudden and ridiculous conclusion by a qhance re- 
mark. It was Mr. Gabriel Moore, of Alabama, who sat near me, and to whom I said, 
when the vote was declared : ' You have broken a minister, and elected a Vice-Pres- 
ident.' He asked me how ; and I told him the people would sec nothing in it but a 
combination of rivals against a competitor, and would pull them all down and set hira 
up. ' Good God ! ' said he, ' why didn't you tell me that before I voted, and I would 
have voted the other way.' " In Mr. Moore's speech, only delivered a few moments 
before this. Is to be found this passage : " Sir, it is proper that I should declare that 
the evidence adduced against the character and conduct of the late Secretary of State, 
and the sources from which this evidence emanates, have made an Impression on my 
mind that will require of me, in the conscientious though painful discharge of my duty, 
to record my vote against his nomination.' I heard Mr. Calhoun say to one of his 
doubting friends, ' It will kill him, sir — kill him dead. He will never kick, sir — never 
kick ! ' and the alacrity with which he gave the casting votes, on the two occasions, 
both vital, on which they were put into his hands, attested the sincerity of his belief, 
and his readiness for the work." A tie vote was purposely produced twice, by the 
surplus votes against the nomination going out, and Mr. Calhoun, then being Vice- 
President, was thus compelled to give the casting vote and show his position. In ref- 
erence to this case. Col. Benton also says : 

" The famous Madame Roland, when mounting the scaffold, apostrophized the 
mock statue upon it with this exclamation : ' Oh Liberty ! how many crimes are com- 
mitted in thy name ! ' After what I have seen during my thirty years of inside and 
outside views in the Congress of the United States, I feel qualified to paraphrase the 
apostrophe, and exclaim : ' Oh Politics ! how much bamboozling is practised in thy 
game ! ' " — (Thirty Years' View, vol. i., 214.) 

But whether we give full credence to the history of this transaction or not, as given 
by Col. Benton, Senators (especially all those known or supposed to have aspirations 
for further promotion) are placed in a very delicate and embarrassing position. In 
cases like the one mentioned, there may be ample reason for rejecting the nomination ; 
and yet Senators would be deterred from so voting, because it would subject their mo- 
tives to plausible imputation, and in the end promote the political rise of the unworthy 
nominee. 



80 TUE ULTIMATE KEMEDT. 

element of tlic nation. The term, of four years would seem 
preferable to that, of two, as it would give members a reasonable 
time to make themselves fully acquainted with the rules of the 
House, and the exising state of legislation. The present term 
of two years is too short, considering the extent of our country 
and the complex character of its diversified interests. A mem- 
ber can now scarcely prepare himself so as j)roperly to introduce 
his measures before his time is out.* 

A body constituted as the House of Representatives, is in- 
dispensably necessary to arouse the attention and quicken the 
action of the conservative branch. There is great practical dan- 
ger that, without this fresh, young, and vigorous body, the 
Senate would become too conservative. But as the Senate 
would have every motive to do right, and none to do wrong, 
the persistent assertion of true principles and the advocacy of 
correct measures on the part of the House, could not fail, in. 
due time, to secure the consent of the Senate. The correctness 
of this opinion is proven by the history of English legislation, 
where the House of Lords, from the nature of its structure and 
composition, is more apt to be swayed by the interests and 
habits of particular classes than would be the Senate ; and for 
that reason, offers a greater obstacle to the passage of just and 
liberal measures. It required some forty years' hard exertion 
of Earl Grey and Major Cartwright to carry British Parlia- 
mentary reform, and long-continued exertions to carry Catholic 
emanci]3ation, corn-law repeal, abolition of the slave-trade, and 
other great "measures. But the Senate, from its composition, 
would be much more susceptible to the appeals of reason and 
justice. 

§ 5. The Judiciary. 

The judges of all the more important courts of record should 
be appointed by the President, by and with the advice and con- 
sent of the Senate ; and the judges of the courts of inferior im- 

* " Sliort service and not popular election, is the evil of the House of Picprosenta- 
tives ; and this becomes more apparent by contrast — contrast between the North and 
the South — the caucus, or rotatory system, not prevailing in the South, and useful 
members being usually coatinucd from that quarter as long as useful ; and thus, with 
fewer members, usually showing a greater number of men who have attained a distinc- 
tion." — (Thirty Years' View, vol. i., 207.) 



THE ULTIMATE EEMEDY. 81 

portanco by tlie Governors of the States, by and witli the advice 
and consent of the State Senates. Both classes of judges should 
hold their offices during good behavior, and be subject to re- 
moval from office by impeachment. The judges of the Supreme 
Court of the United States should be incapable of holding any 
other position. A seat upon the bench of that Court should be 
held sufficient to satisfy human ambition. 

A Supreme Court, thus constituted, would be superior to 
the Court of Eang's Bench in England. Though the judges 
there have now fixed salaries, and are not removable at the 
pleasure of the crown as formerly, they are subject to removal 
simply upon the address of both Houses of Parliament, and are 
under the influence of the hope of future promotion. In refer- 
ence to the English j iidges, Mr. Ilallam remarks : 

" It is always to be kept in mind that they are still accessi- 
ble to the hope of further promotion, to the zeal of political at- 
tachment, to the flattery of princes and ministers ; that the bias 
of their prejudices, as elderly and peaceable men, will, in a plu- 
rality of cases, be on the side of power ; that they have very 
frequently been trained, as advocates, to vindicate every pro- 
ceeding of the crown ; from all which we should look on them 
with some little vigilance, and not come hastily to the conclu- 
sion that, because their commissions cannot be vacated by the 
crown's authority, they are wholly out of the reach of its influ- 
ence."— (Con. His., 597.) 

§ 6. Salaries. 

Tlie President, the heads of the Executive departments, 
judges of the Courts, and members of Congress, should receive 
fixed salaries, which should not be increased or diminished dur- 
ing the term for which they were appointed. As to the salaries 
of the President, heads of dejDartments, and judges of the Courts, 
the Constitution itself should provide that they should be paid 
out of the first moneys in the Treasury, without the necessity of 
any appropriation by Congress for that purpose. 

Tliis provision is important to render the Executive and Ju- 
dicial departments independent of a factious House of Pepre- 
sentatives ; as in this House all revenue and appropriation bills 
would originate, a factious majority of its members, driven by 
6 



82 THE ULTIMATE KEMEDY. 

jDarty exasperation, might witliliold the appropriations for the 
other departmeats. It is well to remove this temptation from 
the House. One department should not have the power over 
the means of living of the principal officers of the other two. 
The verj object of a Constitutional theory is to distribute the 
powers of Government among independent departments. There- 
fore, to make one department dependent upon another is to 
defeat the very purpose of a free Constitution. 

§ 7. Slavery. 
This vexed question has been so much discussed, and often 
in a spirit so bitter, and so intense a feeling now exists in refer- 
ence to it, that but a single remark seems proper under this 
head. "Whatever settlement of the question should be finally 
adopted, should be plainly stated in the Constitution ; and when 
thus stated, both sections of the Union might rely, with entire 
confidence, that the guarantees of the Constitution would be 
faithfully preserved, by a Government constituted as the one 
proposed. 

§ 8. Conclusion. 

The causes which are alleged to have produced the present 
crisis, and the proposed ultimate remedy, have now been stated. 
Though the question of slavery has often been placed in the 
foreground, it is but a secondary, and not a fundamental cause. 
Had that question constituted the fundamental difficulty, more 
earnest efforts would have been made to settle it. But the best 
minds in the nation have lost faith in the practical efficiency of 
our present governmental theory ; and this being true, men of 
capacity and conscience would not throw their whole hearts 
and minds into a futile effort to patch up a theory that they be- 
lieved could not stand. They would not violate their con- 
sciences, and peril their just reputations with posterity, by com- 
mitting themselves to a position which they fully believed to be 
idle and false. Without claiming the slightest right to sj)eak 
for the members of the bar, the simple ojjinion is given, that 
nine out of every ten have lost faith in our theory. 

The following remarks of De Tocqueville upon the existing 
theory, will show what a distinguished foreigner, not unfriendly 
to our people, thinks of it : 



THE ULTIMATE EEMEDT. 83 

" Tlie Americans determined that the members of the Legis- 
lature should be elected by the people immediately, and for a 
very brief term, in order to subject them not only to the general 
convictions, but even to the daily passions of their constituents. 

" When an individual or a party is wronged in the United 
States, to whom can he apply for redress ? If to public opinion, 
public opinion constitutes the majority ; if to the Legislature, it 
represents the majority, and implicitly obeys its instructions ; 
if to the executive power, it is appointed by the majority, and 
is a passive tool in its hands ; the public troops consist of the 
majority under arms ; the jury is the majority invested M'ith the 
right of hearing judicial cases ; and in certain States even the 
judges are elected by the majority. However iniquitous or ab- 
surd the evil of which you complain may be, you must submit 
to it as well as you can." — (Pp. 275, 282.) 

Men, if they wish to govern, or be governed in peace and 
prosperity, must themselves be willing to* submit to that which 
is just in itself. The mere passions and interested judgments 
both of majorities and minorities, must be restrained within 
proper limits. He who is in the majority to-day, and assists in 
opposing the minority, may to-morrow be in the minority, and 
be himself the victim. There is no ground ujpon which all can 
meet, hut that of justice. But as men, for many reasons, differ 
as much as to what is just under certain circimistances as to any 
other questions, it becomes indispensable to have some authority 
to peacefully determine the controversy. All that a correct 
theory of government can do, is to provide tribunals that will 
not only act justly, but avoid even the appearance of injustice. 
Men will submit quietly, and even willingly, to the decisions of 
officers whose motives they are satisfied are pure. They will 
sooner forgive an error of judgment than a wilful wrong. When 
a theory of government is so constituted as to remove all tempt- 
ation to do wrong by those in power, and thus leave no plausi- 
ble ground for the imputation of interested or impure motives, 
it has done all that a theory of government can well do. 

It is respectfully submitted, that the theory herein pro]30sed 
will accomplish this. It is democratic, yet conservative — free, 
and yet not anarchical — strong, and yet not tyrannical. It is 
provided with ample checks upon abuses ; and yet every class 
in the nation can be heard in its councils. It proposes to secure 



84 THE ULTIMATE KEMEDT. 

the honesty of ofBcers, by the simple and effectual method of 
removing the temptation to do wrong. Human virtue is always 
most secure in the absence of temptation. 

There is a clear distinction between the Union and the ex- 
isting Constitution. The first is of the utmost importance. Its 
permanent dissolution would be the greatest of political misfor- 
tunes ; because it would, in its ultimate results, involve all 
other political evils. It would be better to have despotism with 
the Union, than despotism without it. The great Washington 
had every reason for his intense devotion to the Union. ^'■His 
devotion was a rational one^ And as to the Constitution, 
though defective, it should be 'inost faithfully carried out, in its 
true s]3irit, until amended. Every violation of the Constitution 
is but a long step towards the utter and entire destruction of all 
theories of limited governments. It would be much better to 
submit patiently to any temporary evils arising from defects in 
the Constitution, rather than violate any of its provisions. 
Plain violations of that fundamental law, which all officers are 
sworn to support, are fatal precedents, alike destructive of pub- 
lic and private virtue. 

"We are now engaged in a terrible revolution, the precise 
termination of which no one can foresee. "We can only speak 
of probabilities, not certainties. It is not probable that it will 
terminate in a permanent dissolution of the Union. It is most 
probable that there will be alternate successes and defeats on 
both sides, until both parties are well-nigh exhausted ; and then 
they will be prepared to begin again at the beginning, and re- 
lay the foundation of our political edifice in a more practical 
and consistent theory of government. There is some danger 
that extreme exhaustion may hurry our people either into a des- 
potism or a limited monarchy.* Men are prone to pass rapidly 
from one extreme to the other. But there is great reliance to 
be f)laced in the practical good sense of the American people. 
Trusting in that good sense, these views are submitted to their 
candid consideration. 

* There is a plain distinction between a limited monarchy and a government of 
limited powers. Tlie powers of the English crown are limited, and this makes it a 
limited monarchy. But the powers of that gorcrnment itself are vested in the king 
and Parliament ; and these, taken tor/ciher, have no limits, except those of physical 
impossibility. 



APPENDIX. 



CONCEENING DANGERS FROM TVAR BETWEEN THE STATES. 
From the Federalist, No. VI. By xVlexandek Hamilton. 

The tliree last numbers of this work liave been dedicated to an enumera- 
tion of the dangers to which we shall be exposed, in a state of disunion, from 
the arms and arts of foreign nations. I shall now proceed to delineate dan- 
gers of a different, and perhaps still more alarming kind ; those which will, 
in all probability, flow from dissensions between the States themselves, and 
from domestic factions and convulsions. These have been already, in some 
instances, slightly anticipated ; but they deserve a more particular and more 
full investigation. 

If these States should either be wholly disunited, or only united in partial 
confederacies, a man must be far gone in Utopian speculations, who can seri- 
ously doubt that the subdivisions into which they might be tlirown would have 
frequent and violent contests with each other. To presume a want of motives 
for sucb contests, as an argument against their existence, would be to forget 
that men are ambitious, vindictive, and rapacious. To look for a contin- 
uation of harmony between a number of independent, unconnected sover- 
eignties, situated in the same neighborhood, would be to disregard the uniform 
course of human events, and to set at defiance the accumulated experience 
of ages. 

The causes of hostility among nations are innumerable. There are some 
which have a general and almost constant operation upon the collective bodies 
of society. Of this description are the love of power, or the desii-e of pre- 
eminence and dominion — the jealousy of power, or the desire of equality and 
safety. There are others which have a more circumscribed, though an equally 
operative influence within their spheres ; such are the rivalships and competi- 
tions of commerce between commercial nations. And there are others, not 
less numerous than either of the former, which take their origin entirely in 
private passions ; in the attachments, enmities, interests, hopes, and fears of 
leading individuals in the communities of which they are members. Men of 
this class, whether the favorites of a king or of a people, have in too many 
instances abused the confidence they possessed ; and, assuming the pretext of 



86 APPENDIX. 

some public motive, have not scrupled to sacrifice tlic national tranquillity to 
personal advantage, or personal gratification. 

The celebrated Pericles, in compliance with the resentment of a prostitute,* 
at the expense of much of the blood and treasure of his countrymen, attacked, 
vanquished, and destroyed the city of the Samnians. The same man, stimu- 
lated by private pique against the Magarensians, another nation of Greece, or 
to avoid a prosecution with which he was threatened as an accomplice in a 
supposed theft of the statuary I^hulias, or to get rid of the accusations pre- 
pared to be brought against hira for dissipating the funds of the state in the 
purchase of popularity, or from a combination of all these causes, was the 
primitive author of that famous and fatal war, distinguished in the Grecian 
annals by the name of the Peloponnesian war ; which, after various vicissi- 
tudes, intermissions, and renewals, terminated in the ruin of the Athenian 
commonwealth. 

The ambitious cardinal, who was prime minister to Henry YIIL, permit- 
ting his vanity to aspire to the triple crown, entertained hopes of succeeding 
in the acquisition of that splended prize by the influence of the emperor 
Charles Y. To secure the favor and interest of this enterprising and power- 
ful monarch, he precipitated England into a war with France, contrary to the 
plainest dictates of policy, and at the hazard of the safety and independence, 
as well of the kingdom over which he presided by his counsels, as of Europe 
in general. For if there ever was a sovereign v/ho bid fair to realize the 
project of universal monarchy, it was the emperor Charles V., of whose in- 
trigues Wolsey was at once the instrument and the dupe. 

The influence which the bigotry of one female,t the petulance of another,f 
and the cabals of a third,§ had in the cotemporary policy, ferments, and 
pacifications, of a considerable part of Europe, are topics that have been too 
often descanted upon not to be generally known. 

To multiply examples of the agency of personal considerations in the pro- 
duction of great national events, either foreign or domestic, according to 
their direction, would be an unnecessary waste of time. Those who have but 
a superficial acquaintance with the sources from which they are to be drawn, 
will themselves recollect a variety of instances ; and those who have a toler- 
able knowledge of human nature, will not stand in need of such lights, to 
form their opinion either of the reality or extent of that agency. Perhaps, 
however, a reference, tending to illustrate the general principle, may with 
propriety be made to a case which has lately happened among ourselves. If 
Shats had not been a desperate deltor, it is much to be doubted whether 
Massachusetts would have been plunged into a civil war. 

But notwithstanding the concurring testimony of experience, in this par- 
ticular, there are still to be found visionary or designing men, who stand 
ready to advocate the paradox of perpetual peace between the States, though 
dismembered and alienated from each other — the genius of republics, say 
they, is pacific ; the spirit of commerce has a tendency to soften the manners 

* AsPASiA : vide PLUTAUcn's life of Pericles. 

t Madame de Maintenon. J Duchess of Marlborough. 

§ Madame de Pompadour. 



APPENDIX. 87 

of men, and to extinguish those inflammable humors which have so often 
kindled into wars. Commercial republics, like ours, will never be disposed 
to waste themselves in ruinous contentions with each other. They will be 
governed by mutual interest, and will cultivate a spirit of nmtual amity and 
concord. 

"We may ask these projectors in politics, whether it is not the true interest 
of all nations to cultivate the same benevolent and philosophic spirit ? If 
this be their true interest, have they, in fact, pursued it ? lias it not, on the 
contrary, invariably been found that momentary passions, and immediate 
interests, liave a more active and imperious control over human conduct than 
general or remote considerations of policy, utility, or justice ? Have republics 
in practice been less addicted to war than monarchies? Are not the former 
administered by men as well as the latter ? Are there not aversions, predi- 
lections, rivalships, and desires of unjust acquisition, that affect nations as well 
as kings ? Are not popular assemblies frequently subject to the impulses of 
rage, resentment, jealousy, avarice, and of other irregular and violent propen- 
sities ? Is it not well known, that their determinations are often governed 
by a few individuals in whom they place confidence, and that they are, of 
course, liable to be tinctured by the passions and views of those individuals ? 
Has commerce hitherto done any thing more than changed the objects of 
war ? Is not the love of wealth as domineering and enterprising a passion as 
that of power or glory ? Have there not been as many wars founded upon 
connncrcial motives, since that has become the prevailing system of nations, 
as were before occasioned by the cupidity of territory or dominion ? Has 
not the spirit of commerce, in many instances, administered new incentives 
to the appetite, both for the one and for the other ? Let experience, the 
least fallible guide of human opinions, be appealed to for an answer to these 
inquiries. 

Sparta, Athens, Eome, and Carthage, were all republics ; two of them, 
Athens and Carthage, of the commercial kind. Yet were they as often en- 
gaged in wars, offensive and defensive, as the neighboring monarchies of the 
same times. Sparta was little better than a well-regulated camp ; and Rome 
was never sated of carnage and conquest. 

Carthage, though a commercial republic, was the aggressor, in the very 
war that ended in her destruction. Hannibal had carried her arms into the 
heart of Italy, and even to the gates of Rome, before Scipio, in turn, gave 
him an overthrow in the territories of Carthage, and made a conquest of the 
commonwealth. 

Venice, in latter times, figured more than once in wars of ambition ; till, 
becoming an object of terror to the other Italian states, Pope Julius the 
Second found means to accomplish that formidable league,* which gave a 
deadly blow to the power and pride of that haughty republic. 

The provinces of Holland, till they were overwhelmed in debts and taxes, 
took a leading and conspicuous part in the wars of Europe. They had furious 

* The Leagce of Cambhat, comprehending the emperor, the King of France, the 
King of Arragon, and most of the Italian princes and States. 



88 APPENDIX. 

contests -with England for the dominion of the sea ; and were among tlie most 
persevering and most implacable of the opponents of Louis XIV. 

In the government of Bi'itain the representatives of the people compose 
one branch of the national legislature. Commerce has been for ages the 
predominant pursuit of that country. Yet few nations have been more fre- 
quently engaged in war ; and the wars in which that kingdom has been en- 
gaged, have in numerous instances proceeded from the people. There have 
been, if I may so express it, almost as many popular as royal wars. The cries 
of the nation and the importunities of their representatives have, upon various 
occasions, dragged their monarchs into war, or continued them in it, contrary 
to their inchnations, and sometimes contrary to the real interests of the 
State. In that memorable struggle for superiority between the rival houses 
of Austria and Bourbon., lyhich so long kept Europe in a flame, it is well 
known that the antipathies of the English against the French, seconding the 
ambition, or rather the avarice of a favorite leader,* protracted the war be- 
yond the limits marked out by sound policy, and for a considerable time in 
opposition to the views of the court. 

The wars of these two last-mentioned nations have in a great measure 
grown out of commercial considerations ; the desire of supplanting, and the 
fear of being supplanted, either in particular branches of traiBc, or iu the 
general advantages of trade and navigation; and sometimes even the more 
culpable desire of sharing in the commerce of other nations, without their 
consent. 

The last war but two between Britain and Spain sprang from the at- 
tempts of the English merchants to prosecute an illicit trade with the Spanish 
main. These unjustifiable practices, on their part, produced severities on the 
part of the Spaniards towards the subjects of Great Britain, which were not 
more justifiable ; because they exceeded the bounds of a just retaliation and 
were chargeable Avith inhumanity and cruelty. Many of the English who 
were taken on the Spanish coasts Avere sent to dig in the mines of Potosi ; 
and, by the usual progress of a spirit of resentment, the innocent were after 
a while confounded with the guilty in indiscriminate punishment. The com- 
plaints of the merchants kindled a violent flame throughout the nation, which 
soon after broke out in the Ilouse of Commons and was communicated from 
that body to the Ministry. Letters of reprisal were granted, and a war 
ensued, which, in its consequences, overthrew all the alliances that but 
twenty years before had been formed, with sanguine expectations of the most 
beneficial fruits. 

From this summary of what has taken place in other countries, whose 
situations have borne the nearest resemblance to our own, what reason can 
we have to confide in those reveries which woifld seduce us into the expecta- 
tion of peace and cordiality between the members of the present confederacy 
in a state of separation ? Uave we not already seen enough of the fallacy 
and extravagance of those idle theories which have amused us with promises 
of an exemption from the imperfections, the weaknesses, and the evils inci- 
dent to society in every shape ? Is it not time to awake from the deceitful 

• * The Duke of Marlborough. 



APPENDIX. 89 

dream of a golden age, and to adopt as a practical maxim for the direction 
of our political conduct, that we, as well as the other inhabitants of the 
globe, are yet remote from the happy empire of perfect wisdom and perfect 
virtue ? 

Let the point of extreme depression to which our national dignity and 
credit have sunk ; let the inconveniences felt everywhere from a lax and ill- 
admiuistration of Government ; let the revolt of a part of the State of North 
Carolina ; the late menacing disturbances in Pennsylvania, and the actual in- 
surrections and rebellions in Massachusetts, declare ! 

So far is the general sense of mankind from corresponding with the tenets 
of those who endeavor to lull asleep our apprehensions of discord and hostil- 
ity between the States, in the event of disunion, that it has from long obser- 
vation of the progress of society become a sort of axiom in politics, that vi- 
cinity or nearness of situation constitutes nations natural enemies. An 
intelligent writer expresses himself on this subject to this effect : " Neigh- 
BORiKG Nations (says he) are naturally enemies of each other, unless their 
common weakness forces them to league in a confederative eepublio, and 
their constitution prevents the differences that neighborhood occasions, extin- 
guishing that secret jealousy which disposes all States to aggrandize them- 
selves at the expense of their neighbors."* This passage, at the same time, 
points out the evil,, and suggests the remedy. Pdblius. 



THE EFFECTS OF INTERNAL WAR IN PRODUCING STANDING ARMIES, AND 
OTHER INSTITUTIONS UNFRIENDLY TO LIBERTY. 

From tho Federalht, No. VIII. By Alexander Hamilton. 

AssiTMiNG it therefore as an established truth, that, in case of disunion, 
the several States, or such combinations of them as might happen to be 
formed out of the wreck of the general confederacy, would be subject to 
those vicissitudes of peace and war, of friendship and enmity with each other, 
wliich have fallen to the lot of all neighboring nations not united under one 
government, let us enter into a concise detail of some of the consequences 
that would attend such a situation. 

"War between the States, in the first periods of their separate existence, 
would be accompanied with much greater distresses than it commonly is in 
those countries where regular military establishments have long obtained. 
The disciplined armies always kept on foot on the continent of Europe, though 
they bear a malignant aspect to liberty and economy, have, notwithstanding, 
been productive of the signal advantage of rendering sudden conquests imprac- 
ticable, and of preventing that rapid desolation which used to mark the 
progress of war prior to their introduction. The art of fortification has con- 
tributed to the same ends. The nations of Europe are encircled with chains 

* Tide Principles des Negotiations par I'Abbe de Mably. 



90 APPENDIX. 

of fortified places, -n-liicli mutually obstruct invasion. Campaigns are wasted 
in reducing two or tlirco frontier garrisons, to gain admittance into an 
enemy's country. Similar impediments occur at every step, to exhaust the 
strength and delay the progress of an invader. Formerly an invading army 
would penetrate into the heart of a neighboring country, almost as soon as 
intelligence of its approach coidd be received ; but now, a comparatively 
small force of disciplined troops, acting on the defensive, with the aid of 
posts, is able to impede, and finally to frustrate, the enterprises of one much 
more considerable. The history of war in that quarter of the globe is no 
longer a history of nations subdued and empires overturned ; but of towns 
taken and retaken, of battles that decide nothing, of retreats more beneficial 
than victories, of much efi"ort and little acquisition. 

In this country, the scene would be altogether reversed. The jealousy of 
military establishments, would postpone them as long as possible. The want 
of fortifications, leaving the frontiers of one State open to another, would 
facilitate inroads. The populous States would, with little diSiculty, overrun 
their less populous neighbors. Conquests would be as easy to be made, as 
difficult to be retained. "War, therefore, would be desultory and predatory. 
Plunder and devastation ever march in the train of irregulars. The calamities 
of individuals would make the principal figure in the events which would 
characterize our military exploits. 

This picture is not too highly wrought ; though, I confess, it would not 
long remain a just one. Safety from external danger is the most powerful 
director of national conduct. Even the ardent love of liberty will, after a 
time, give way to its dictates. The violent destruction of life and property, 
incident to war ; the continual cflFort and alarm attendant on a state of con- 
tinual danger, will compel nations the most attached to liberty, to resort for 
repose and security to institutions which have a tendency to destroy their 
civil and political rights. To be more safe, they at length become willing to 
run the risk of being less free. 

The institutions chiefly alluded to are standing aemies, and the corre- 
spondent appendages of military establishments. Standing armies, it is said, 
are not provided against in the new constitution ; and it is thence inferred 
that they would exist under it.* Tliis inference, from the very form of the 
proposition, is, at best, problematical and uncertain. But staxdixg aemies, it 
may be replied, must inevitably result from a dissolution of the confederacy. 
Frequent war, and constant apprehension, which require a state of as con- 
stant preparation, will infallibly produce them. The weaker States, or con- 
federacies, would first have recourse to them, to put themselves upon an 
equality with their more potent neighbors. They would endeavor to supply 
the inferiority of population and resources by a more regular and efi'ectivc 
system of defence, by disciplined troops, and by fortifications. They would, 
at the same time, be obliged to strengthen the executive arm of government ; 
in doing which, their constitutions would acquire a progressive direction 

* This objection will be fully examined in its proper place ; .md it will be shown 
that the only rational precaution which could have been taken on this subject, has been 
taken ; and a much better one than is to be found in any constitution that has been hei'c- 
toforc framed in America, most of which contain no guard at all on this subject. 



APPENDIX. 91 

towards monarchy. It is of the nature of war to increase the executive, at 
the expense of the legislative authority. 

The expedients which have been mentioned would soon give the States, 
or confederacies, that made use of them, a superiority over their neighbors. 
Small States, or States of less natural strength, under vigorous governments, 
and with the assistance of disciplined armies, have often triumphed over large 
States, or States of greater natural strength, which have been destitute of 
these advantages. Neither the pride, nor the safety, of the more important 
States, or confederacies, -would permit them long to submit to this mortifying 
and adventitious superiority. They would quickly resort to means similar to 
those by which it had been effected, to reinstate themselves in their lost pre- 
eminence. Thus we should, in a little time, see established, in every part of 
this country, the same engines of despotism which have been the scourge of 
the old world. This, at least, would be the natural course of things ; and our 
reasonings will be likely to be just, in proportion as they are accommodated 
to this standard. 

These are not vague inferences deduced from speculative defects in a con- 
stitution, the whole power of -which is lodged in the hands of the people, or 
their representatives and delegates ; they are solid conclusions, drawn from 
the natural and necessary progress of human affairs. 

It may perhaps be asked, by way of objection, why did not standing 
armies spring up out of the contentions which so often distracted the ancient 
republics of Greece ? Different answers, equally satisfactory, may be given 
to this question. The industrious habits of the people of the present day, 
absorbed in the pursuits of gain, and devoted to the improvements of agricul- 
ture and commerce, are incompatible -with the condition of a nation of sol- 
diers, which was the true condition of the people of those republics. The 
means of revenue, -which have been so greatly multiplied by the increase of 
gold and silver, and of the arts of industry and of the science of finance, which 
is the offspring of modern times, concurring -with the habits of nations, have 
produced an entire revolution in the system of -war, and have rendered disci- 
plined armies, distinct from the body of the citizens, the inseparable com- 
panion of frequent hostility. 

There is a wide difference, also, between military establishments in a 
country -which, by its situation, is seldom exposed to invasions, and in one 
which is often subject to them, and always apprehensive of them. The rulers 
of the former can have no good pretext, if they are even so inclined, to keep 
on foot armies so numerous as must of necessity be maintained in the latter. 
These armies being, in the first case, rarely, if at all, called into activity for 
interior defence, the people are in no danger of being broken to military sub- 
ordination. The laws are not accustomed to relaxations in favor of military 
exigencies ; the civil state remains in full vigor, neither corrupted, nor con- 
founded with the principles or propensities of the other State. The smaUness 
of the army forbids competition with the natural strength of the community, 
and the citizens, not habituated to look up to the military power for protec- 
tion, or to submit to its oppressions, neither love nor fear the soldiery : they 
view them with a spirit of jealous acquiescence in a necessary evil, and stand 



92 APPENDIX. 

ready to resist a power which they suppose may be exerted to the prejudice 
of their rights. 

TIio army, under such circumstances, tliough it may usefully aid the 
magistrate to suppress a small faction, or an occasional mob, or insurrection, 
will be utterly incompetent to the purpose of enforcing encroachments against 
the united efforts of the great body of the people. 

But in a country where the perpetual menacings of danger oblige the gov- 
ernment to be always prepared to repel it, her armies must be numerous 
enough for instant defence. The continual necessity for his services enhances 
the importance of the soldier, and proportionably degrades the condition of 
the citizen. The military state becomes elevated above the civil. The in- 
habitants of territories often the theatre of war, are unavoidably subjected to 
frequent infringements on their rights, which serve to weaken their sense of 
those rights ; and by degrees the people are brought to consider the soldiery 
not only as their protectors, but as their superiors. The transition from this 
disposition to that of considering them as masters is neither remote nor diffi- 
cult : but it is very difficult to prevail upon a people under such impressions 
to make a bold or effectual resistance to usurpations supported by the military 
power. 

The kingdom of Great Britain falls within the first description. An insu- 
lar situation, and a powerful marine, guarding it in a great measure against 
the possibility of foreign invasion, supersede the necessity of a numerous 
army within the kingdom. A sufficient force to make head against a sudden 
descent till the militia could have time to rally and embody, is all that has 
been deemed requisite. ISTo motive of national policy has demanded, nor 
would public opinion have tolerated, a larger number of troops upon its do- 
mestic establishment. This peculiar felicity of situation has, in a great 
degree, contributed to preserve the liberty Avhich that country to this day 
enjoys, in spite of the prevalent venality and corruption. If Britain had been 
situated on the continent, and had been compelled, as she would have been, 
by that situation, to make her military establishments at home coextensive 
with those of the other great powers of Europe, she, like them, would, in all 
probability, at this day, be a victim to the absolute power of a single man. 
It is possible, though not easy, for the people of that island to be enslaved 
from other causes ; but it cannot be by the prowess of an araiy so inconsider- 
able as that which has been usually kept up within the kingdom. 

If we are wise enough to preserve the Union, we may for ages enjoy an 
advantage similar to that of an insulated situation. Europe is at a great dis- 
tance from us. Her colonies in our vicinity will be likely to continue too 
much disproportionate in strength, to be able to give us any dangerous an- 
noyance. Extensive military establishments cannot, in this position, be 
necessary to our security. But if we should be disunited, and the integral 
parts should either remain separated, or, which is most probable, should be 
thrown together into two or three confederacies, we should be, in a short 
course of time, in the predicament of the continental powers of Europe. Our 
liberties would be a prey to the means of defending ourselves against the 
ambition and jealousy of each other. 



APPENDIX. 93 

This is an idea not superficial nor futile, but solid and weighty. It de- 
serves the most serious and mature consideration of every prudent and honest 
man, of whatever party : if such men will make a firm and solemn pause, and 
meditate dispassionately on its vast importance ; if they will contemplate it 
in all its attitudes, and trace it to all its consequences, they will not hesitate 
to part with trivial objections to a constitution, the rejection of which would 
in all probability put a final period to the Union. The airy phantoms that 
now fiit before the distempered imaginations of some of its adversaries, would 
then quickly give place to the more substantial prospects of dangers, real, 
certain, and extremely formidable. Publitts. 






THE END. 



THE AMEKICAN 


THEOTiY OF GOVERNMENT 


CONSIDERED j 


WITH REFERENCE TO THE PRESENT CRISIS. 


BY 


TETER H. BURNETT. 


" I bad ratber be right than be President."— HExny Clay. 


s. . 


NEW YORK: 


D. APPLETON & CO., 443 & 445 BROADWAY. 


LONDON: IG LITTLE BRITAIN. 


1861. 



D. Appleton & Company's Publications. 



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41 






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